Disposed

Sri.Thajuddeen B.K. v. the State of Kerala

Kerala HC19 Feb 2016OT.Rev/28/2016

Case brief

AI extract

What is this about?

In a VAT revision, the High Court of Kerala set aside the Tribunal's order and directed the first appellate authority to reconsider the appeal de novo if the appellant deposits an additional Rs. 2,00,000 within four weeks.

What did the court decide?

Vacating the lower orders; directing the first appellate authority to reconsider the appeal de novo upon deposit of Rs. 2,00,000 within four weeks.

Sri.Thajuddeen B.K. Vs the State of Kerala — Writ and Judicial Review | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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FRIDAY, THE 19TH DAY OF FEBRUARY 2016/30TH MAGHA, 1937

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OT.Rev.No. 28 of 2016 ()

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AGAINST THE ORDER/JUDGMENT IN KVAT/AIT&S.T.A.TRIBUNAL, ADDL.BENCH, KZD. IN TAVAT 583/2014 DATED 30-09-2015

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REVISION PETITIONER(S)/APPELLANT/APPELLANT/ASSESSEE:

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------------------------------------------------

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SRI.THAJUDDEEN B.K. BEACH ROAD, NELLIKUNNU, KASARAGOD.

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BY ADV. SRI.RAJESH NAMBIAR

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RESPONDENT(S)/RESPONDENT/RESPONDENT/REVENUE :

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-----------------------------------------------

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THE STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT DEPARTMENT OF COMMERCIAL TAXES, SECRETARIAT THIRUVANANTHAPURAM-695 001.

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BY ADV.SOBHA ANNAMMA EAPEN, SR. GOVERNMENT PLEADER

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THIS OTHER TAX REVISION (VAT) HAVING COME UP FOR ADMISSION ON 19-02-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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OTREV28/16

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APPENDIX

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PETITIONER'S EXHIBITS ANNEXURE A : COPY OF ASSESSMENT ORDER DATED 24.12.2012 FOR THE YEAR 2010-2011. ANNEXURE B : COPY OF 1ST APPELLATE ORDER DATED 04.11.2013. ANNEXURE C : COPY OF ORDER OF THE TRIBUNAL DATED 30.09.2015. //TRUE COPY//

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PA TO JUDGE.

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jg-29/2

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THOTTATHIL B.RADHAKRISHNAN & ANU SIVARAMAN, JJ.

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O.T.Rev.(VAT) No.28 of 2016

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.................................................................... Dated this the 19^th day of February, 2016.

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O R D E R

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Thottathil B.Radhakrishnan, J.

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1.This revision at the instance of the assessee is filed under Section 63 of the Kerala Value Added Tax Act, 2003. He challenges the decision by which the Tribunal and the first Appellate Authority affirmed the best of judgment assessment issued in relation to a poultry rearing unit of the assessee.

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2.On 06.05.2010, the intelligence officer conducted an inspection. That led to penalty proceedings, compounding and also appellate intervention with the penalty order.

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3.The assessing authority issued a pre-assessment notice and concluded the assessment proceedings after hearing the assessee essentially depending on the inspection report of 06.05.2010 and also making certain other statements in relation to turnover and

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O.T.Rev.28/16

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-2-

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transactions of the assessee. The first appellate authority and the second appellate authority, namely the Tribunal, considered the appeals of the assessee, but except superfluously saying that the assessing authority had conducted an enquiry, there is no clear indication either in the orders of the first appellate authority or the Tribunal as to what are the contents of the so-called inspection report by the assessing authority. We say this in the context of the fact that specific ground was raised before the first appellate authority and the Tribunal that there was no independent consideration by the assessing authority and the entire decision on assessment was made based on the intelligence officer's report which was relevant only for the penalty proceedings.

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4.In the light of the submissions made by the learned counsel for the assessee and the learned Senior Government Pleader for the Department of Commercial Taxes, we have looked into the materials as are available and reflected through the assessment

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O.T.Rev.28/16

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-3-

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order, the first appellate authority's order and the Tribunal's order and are satisfied that ends of justice require that the matter requires to be re-considered by the first appellate authority, however on terms, because the admitted situation is that the assessee had not taken registration though he was compelled by law to take registration, having regard to the registrable limits of his turnover. We have looked into the different aspects of the calculations made by the assessing authority and are of the view that over and above the amount of 3,00,000/- which is already stated to have been paid by the assessee towards tax pending appeals, if the assessee pays a further amount of 2,00,000/(Rupees two lakhs only), the first appellate authority will consider the matter afresh by affording the assessee an opportunity of hearing as against Annexure-A assessment order.

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In the result, the impugned decisions of the Tribunal and the first appellate authority are vacated and the first appellate authority is directed to reconsider the appeal of the assessee as against

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O.T.Rev.28/16

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-4-

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Annexure-A assessment order de novo if the assessee deposits an amount of `2,00,000/- (Rupees two lakhs only) within a period of four weeks, without fail. The time limit fixed hereby shall be treated as peremptory. If such deposit is made, the first appellate authority will take up the appeal and decide it de novo within a further period of three months. Parties are directed to mark appearance before the first appellate authority on 15.03.2016. It is clarified that this Court has not expressed anything on the merits of the contentions of the assessee and the Revenue and the first appellate authority will decide the appeal untrammelled by anything stated herein. This revision petition is ordered accordingly.

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(THOTTATHIL B.RADHAKRISHNAN, JUDGE)

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(ANU SIVARAMAN, JUDGE)

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jg-19/2

Sri.Thajuddeen B.K. v. the State of Kerala

Case brief

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Sri.Thajuddeen B.K. v. the State of Kerala

Case brief

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