Allowed

Thomas Sebastian v. Commercial Officer

Kerala HC1 Dec 2016WP(C)/12979/2016

Case brief

AI extract

What is this about?

In a writ petition, the petitioner challenged assessment orders imposing higher tax due to alleged turnover suppression despite opting for presumptive tax under Section 6(5) of the KVAT Act with total turnover below 60 lakhs. The High Court allowed the petition, quashed the orders, and directed the assessing officer to re-quantiy tax based on the presumptive rate.

What did the court decide?

Exhibits P1 and P2 assessment orders quashed; Assessing Officer directed to requantify tax on the basis of presumptive tax for entire turnover.

Thomas Sebastian Vs Commercial Officer — GST and Indirect Tax | 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 A.M.SHAFFIQUE

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THURSDAY, THE 1ST DAY OF DECEMBER 2016/10TH AGRAHAYANA, 1938

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WP(C).No. 12979 of 2016 (V)

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PETITIONER(S):

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THOMAS SEBASTIAN, PROPRIETOR, M/S.BLOOMS PAINTS, KALADY P.O., ERNAKULAM-683 574.

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BY ADVS.SRI.P.S.SOMAN, SMT.T.RADHAMANY.

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RESPONDENT(S):

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1. COMMERCIAL TAX OFFICER, COMMERCIAL TAX OFFICE, ANGAMALY-683 573.

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2. COMMISSIONER OF COMMERCIAL TAXES, TAX TOWER, KARAMANA P.O., THIRUVANANTHAPURAM-695 002.

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

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BY GOVT. PLEADER SRI.V.K. SHAMSUDHEEN.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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WP(C).No. 12979 of 2016 (V)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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P1 TRUE COPY OF THE ASSESSMENT ORDER NO. 32112691508/2012-13 DATED 30.01.2016 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER FOR THE YEAR 2012-13.

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P2 TRUE COPY OF THE ASSESSMENT ORDER NO. 32112691508/2013-14 DATED 30.01.2016 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER FOR THE YEAR 2013-14.

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P3 TRUE COPY OF THE INTERIM ORDER PASSED BY THE HON'BLE COURT IN WPC.NO.38920/2015 DATED 22.12.2015.

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P4 TRUE COPY OF THE INTERIM ORDER PASSED BY THE HON'BLE COURT IN WPC.NO.3840/2015 DATED 01.02.2016.

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P5 TRUE COPY OF THE INTERIM ORDER PASSED BY THE HON'BLE COURT IN WPC.NO.5549/2016 DATED 15.02.2016.

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RESPONDENT'S EXHIBITS:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

A.M. SHAFFIQUE, J.

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W.P.(C).No.12979 of 2016

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Dated this the 1^st day of December, 2016

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J U D G M E N T

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Petitioner challenges Exts.P1 & P2 assessment orders by which the petitioner had been assessed to higher rate of tax though the total turn over of the petitioner was below 60 lakhs. ₹

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Petitioner is a registered dealer under the KVAT Act, who opted for payment of tax under Section 6(5) of the KVAT Act as a presumptive dealer. Alleging that there was suppression of turnover, assessing officer had estimated the turnover and imposed tax at higher rate than 0.5%. This issue is covered by the Division Bench judgment of this Court in Mooken Devassy & Co. v. Commercial Tax Officer [(2016) 24 KTR 516 (Ker)], wherein, after considering the aforesaid issue, the Division Bench held at para 4 as under:-

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“4. There is no dispute even for the Department that the appellant is a registered dealer and that they have opted for payment of tax under Section 6(5) of the Act. However, the benefit of the Section has been denied to the appellant on the basis that certain suppression of turnover has been detected. Though it is true that suppression of turnover has been detected and an equal amount of turnover has been added, still the fact remains that the total turnover now quantified by the Assessing Officer is much less than 60 lakhs of rupees provided in Section 6(5). Section 6(5) of the Act do not contain a provision that an assessee in whose case

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W.P.(C).No.12979 of 2016

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suppression of turnover is detected will be denied the benefit of Section 6(5) of the Act. In such a case, even in spite of the turnover suppressed, since the turnover of the assessee is still below 60 lakhs of rupees, according to us, the assessee ought to have been given the benefit of Section 6 (5) of the Act. For that reason, we are unable to sustain the judgment under appeal and Ext.P3 order of assessment passed for the assessment year 2012-2013.”

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Having regard to the aforesaid view of the Division Bench, this writ petition is hereby allowed and Exts.P1 and P2 are quashed. The assessing officer is directed to requantify the tax on the basis of the presumptive tax payable for the entire turn over.

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Sd/A.M. SHAFFIQUE, JUDGE

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Thomas Sebastian v. Commercial Officer

Case brief

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Thomas Sebastian v. Commercial Officer

Case brief

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