Allowed

M/S. Maliyackal Traders v. the Commercial Tax Officer

Kerala HC31 Oct 2016WP(C)/3954/2016

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a writ petition challenging assessment orders under the KVAT Act. Relying on a Division Bench decision, the court held that denial of presumptive tax benefit due to detected suppression is invalid if total turnover remains below the 60-lakh limit. The impugned orders were quashed.

What did the court decide?

Writ petition allowed. Assessment orders quashed. Assessing officer directed to quantitate tax at presumptive rate based on total turnover.

M/S. Maliyackal Traders Vs the Commercial Tax Officer — 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 A.M.SHAFFIQUE

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MONDAY, THE 31ST DAY OF OCTOBER 2016/9TH KARTHIKA, 1938

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WP(C).No. 3954 of 2016 (T)

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PETITIONER(S):

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M/S. MALIYACKAL TRADERS KANNANGATTU ROAD, EDACOCHIN, KOCHI-682010, REPRESENTED BY ITS MANAGING PARTNER M.J.ROBIN.

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BY ADV. SRI.V.DEVANANDA NARASIMHAM

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RESPONDENT(S):

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1. THE COMMERCIAL TAX OFFICER

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SECOND CIRCLE, COMMERCIAL TAXES, MATTANCHERRY, KOCHI-682 002.

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2. THE STATE OF KERALA

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REP. BY THE SECRETARY, SECRETARIAT, DEPARTMENT OF TAXES, 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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WP(C).No. 3954 of 2016 (T)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1 : TRUE COPY OF ANNUAL RETURN FOR THE YEAR 2012-13 DT 29-8-13 E-FILED BY THE PETITIONER IN KVATIS. P2 : TRUE COPY OF ANNUAL RETURN FOR THE YEAR 2013-14 DT 29-10-14 E-FILED BY THE PETITIONER IN KVATIS. P3 : TRUE COPY OF ANNUAL RETURN FOR THE YEAR 2014-15 DT 05-08-15 E-FILED BY THE PETITIONER IN KVATIS. P4 : TRUE COPY OF THE PROPOSAL NOTICES FOR THE YEARS 2012-13 TO 2014-15 ALL ARE DT 11-11-15. P5 : TRUE COPY OF ASSESSMENT ORDER DT 17-12-15 PASSED U/S 25(1) OF THE KVAT ACT FOR THE YEAR 2012-13 ON A PRESUMPTIVE DEALER. P6 : TRUE COPY OF ASSESSMENT ORDER DT 17-12-15 PASSED U/S 25(1) OF THE KVAT ACT FOR THE YEAR 2013-14 ON A PRESUMPTIVE DEALER.

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P7 : TRUE COPY OF ASSESSMENT ORDER DT 17-12-15 PASSED U/S 25(1) OF THE KVAT ACT FOR THE YEAR 2014-15 ON A PRESUMPTIVE DEALER.

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RESPONDENT(S)' EXHIBITS : NIL.

//TRUE COPY//

P.A. TO JUDGE

A.M. SHAFFIQUE, J.

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=============== W.P. (C) No. 3954 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.P5 to P7 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

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W.P(C) No.3954/16

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-:2:-

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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 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.P5 to P7 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. Maliyackal Traders v. the Commercial Tax Officer

Case brief

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M/S. Maliyackal Traders v. the Commercial Tax Officer

Case brief

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