Allowed

M/S. Stella Electricals and Appliances v. the Commercial Tax Officer

Kerala HC31 Oct 2016WP(C)/3004/2016

Case brief

AI extract

What is this about?

The Court allowed a writ petition challenging assessment orders under the Kerala VAT Act. A registered dealer opting for presumptive tax at 0.5% was assessed at a higher rate due to alleged turnover suppression. Relying on a Division Bench precedent, the Court held that the benefit of the conservational section applies even if suppression is detected, provided the total quantified turnover is belo

What did the court decide?

Exts.P3 to P3(b) assessment orders were quashed. The assessing officer was directed to requantify the tax based on the presumptive tax payable for the entire turnover.

M/S. Stella Electricals and Appliances Vs the Commercial… — 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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MONDAY, THE 31ST DAY OF OCTOBER 2016/9TH KARTHIKA, 1938

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WP(C).No. 3004 of 2016 (A)

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PETITIONER:

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M/S.STELLA ELECTRICALS & APPLIANCES, ATHANI, ALUVA, REPRESENTED BY ITS PARTNER, PAULY GEORGE.

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BY ADVS.SRI.HARISANKAR V. MENON SMT.MEERA V.MENON

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RESPONDENT(S):

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1. THE COMMERCIAL TAX OFFICER, ALUVA - 683 101.

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2. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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BY GOVERNMENT PLEADER SRI.V.K.SHAMSUDHEEN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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WP(C).No. 3004 of 2016 (A)

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APPENDIX

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PETITIONER(S)' EXHIBITS:

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P1-	COPY OF NOTICE ISSUED BY THE IST RESPONDENT FOR THE YEAR 2012-13 DATED 28/10/2015.
P1(A)-	COPY OF NOTICE ISSUED BY THE IST RESPONDENT FOR THE YEAR 2013-14 DATED 28/10/2015.
P1(B)-	COPY OF NOTICE ISSUED BY THE IST RESPONDENT FOR THE YEAR 2014-15 DATED 28/10/2015.
P2-	COPY OF REPLY FOR THE 2014-15 FILED BY THE PETITIONER BEFORE THE IST RESPONDENT DATED 18.11.2015.
P3-	COPY OF ORDER ISSUED BY THE IST RESPONDENT FOR THE YEAR 2012-13 DATED 31.12.2015.
P3(A)-	COPY OF ORDER ISSUED BY THE IST RESPONDENT FOR THE YEAR 2013-14 DATED 31/12/2015.
P3(B)-	COPY OF ORDER ISSUED BY THE IST RESPONDENT FOR THE YEAR 2014-15 DATED 31/12/2015.

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RESPONDENT(S)' EXHIBITS: NIL ----------------------//TRUE COPY//

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P.S. TO JUDGE

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mbr/

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A.M. SHAFFIQUE, J.

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=============== W.P. (C) No. 3004 of 2016

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==================

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Dated this, the 31^st day of October, 2016

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J U D G M E N T

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Petitioner challenges Exts.P3 to P3(b) 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

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W.P(C) No.3004/16

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-:2:-

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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 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.P3 to P3(b) 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/-

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A.M. SHAFFIQUE, JUDGE

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Rp31/10/2016

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//True Copy//

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P.S to Judge

M/S. Stella Electricals and Appliances v. the Commercial Tax Officer

Case brief

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M/S. Stella Electricals and Appliances v. the Commercial Tax Officer

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