This writ petition challenged assessment orders under the Kerala Value Added Tax Act. The High Court dismissed the writ, holding that factual disputes regarding partnership identity precluded a writ remedy and directed the petitioners to file an appeal under the KVAT Act instead.
Recovery steps kept in abeyance for three weeks to enable filing of appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
MONDAY, THE 28TH DAY OF MARCH 2016/8TH CHAITHRA, 1938
WP(C).No. 4988 of 2016 (W)
PETITIONER(S):
1. M/S.R & D FOAMS
2. K.R.RAJESH,
3. SHEEBA A.S.,
BY ADV. SRI.S.MURALI
RESPONDENT(S):
1. THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, TAXES, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 001.
2. COMMERCIAL TAX OFFICER 2ND CIRCLE, PALAKKAD-678 001.
R2 BY GOVERNMENT PLEADER SMT.LILLY K.T.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RVS.
WP(C).No. 4988 of 2016 (W)
APPENDIX
PETITIONER(S)' EXHIBITS:
| EXT. | P1:- | TRUE PHOTOCOPY OF THE PARTNERSHIP DEED EXECUTED BY 2ND AND 3RD PETITIONERS DTD 9/1/2009 |
|---|---|---|
| EXT. | P2:- | TRUE PHOTOCOPY OF THE RETIREMENT AND RECONSTITUTION DEED OF R & D FOAMS EXECUTED BY IST AND 2ND PETITIONERS AND MR. ABDUL ASEES DTD 23/11/2011 WITH CHANGE OF NAME AS SUPREME MOTORS WITH CHANGE OF ADDRESS |
| EXT. | P3:- | TRUE PHOTOCOPY OF INTIMATION OF RETIREMENT AND RECONSTITUTION OF PARTNERSHIP FIRM NAMELY M/S. R & D FOAMS TO 2ND RESPONDENT DTD 2/11/2011 BY 2ND PETITIONER. |
| EXT. | P4:- | TRUE PHOTOCOPY OF THE INTIMATION OF RETIREMENT FROM M/S.R&D FOAMS BY 3RD PETITIONER TO 2ND RESPONDENT DTD 29/11/2011. |
| EXT. | P5- | TRUE PHOTTOCOPY OF DELIVERY BOOK EXTRACT INTIMATING THE 2ND RESPONDENT WITH COPIES OF EXT P2,P3 & P4 DOCUMENTS DTD 30/11/2011 |
| EXT. | P6:- | TRUE PHOTOCOPY OF THE ASSESSMENT ORDER NO 32090644056/2012-13 DTD 31/10/2015 WITH DEMAND NOTICE ISSUED BY THE 2ND RESPONDENT TO M/S.R & D FOAMS FOR RS.2,39,200/= |
| EXT. | P7:- | TRUE PHOTOCOPY OF THE ASSESSMENT ORDER NO 32090644056/2013-14 DTD 3/10/2015 WITH DEMAND NOTICE ISSUED BY 2ND RESPONDENT TO M/S.R & D FOAMS FOR RS.26,68,314/-. |
| EXT. | P8:- | TRUE PHOTOCOPY OF THE ASSESSMET ORDER NO 32090644056/2014-15 DTD 31/10/2015 WITH DEMAND NOTICE ISSUED BY 2ND RESPONDENT TO M/S.R & D FOAMS FOR RS,1,93,928/-. |
| EXT. | P9:- | TRUE PHOTOCOPY OF THE ASSESSMET ORDER NO 32090644056/2015-16(APRIL) DTD 31/10/2015 WITH DEMAND NOTICE FOR THE MONTH OF APRIL 2016 ISSUED BY 2ND RESPONDENT TO M/S.R & D FOAMS FOR RS.58,383/-. |
| EXT. | P10:- | TRUE PHOTOCOPY OF THE ASSESSMENT ORDER NO 32090644056/2015-16(MAY)DTD 31/10/2015 WITH DEMAND NOTICE FOR THE MONTH OF MAY 2016 ISSUED BY 2ND RESPONDENT TO M/S.R & D FOAMS FOR RS 38,199/-. |
| EXT. | P11:- | TRUE PHOTOCOPY OF THE ASSESSMENT ORDER NO 32090644056/2015-16(JUNE)DTD 31/10/2015 WITH DEMAND NOTICE FOR THE MONTH OF JUNE 2016 ISSUED BY 2ND RESPONDENT TO M/S.R & D FOAMS FOR RS.12,650/-. |
| EXT. | P12:- | TRUE PHOTOCOPY OF THE ASSESSMENT ORDER NO 32090644056/2015-16(JULY)DTD 31/10/2015 WITH DEMAND NOTICE FOR THE MONTH OF JULY 2016 ISSUED BY 2ND RESPONDENT TO M/S.R & D FOAMS FOR RS.9,405/-. |
WP(C).No. 4988 of 2016 (W)
| EXT. P13:- | TRUE PHOTOCOPY OF TH 32090644056/2015-16 (AUGUST) NOTICE FOR THE MONTH OF RESPONDET TO M/S.R & D FOAMS |
E ASSESSMENT ORDER DTD 31/10/2015 WITH DE AUGUST 2016 ISSUED BY FOR RS.7621/-. |
NO MAND 2ND |
|---|---|---|---|
| EXT. P14:- | TRUE PHOTOCOPY OF THE MEDIC ISSUED TO 2ND PETITONER AS SANDIVATHAM DURING THE PERIO DR M.A. BALAKRISHNAN(A-CLAS DISPENSARY PALAKKAD. |
AL CERTIFICATE DTD 5/1/ REGARDS HIS TREATMENT D OF 5/3/2015 TO 21/1/2016 S MEDICAL PRACTITIONER)P |
2016 FOR BY RIYA |
| EXT. P15:- | TRUE PHOTOCOPY OF THE RECONSTITUTION ENTERED INTO OTHERS DATED 01/03/2013 FOR STYLE “SMART FAB”. |
DEED OF RETIREMENT BETWEEN 2ND PETITIONER THE NEW FIRM WITH NAME |
CUM AND AND |
| EXT. P16:- | TRUE PHOTOCOPY OF THE STATUS OFFICIAL WEBSITE OF COMME PETITIONER'S FIRM NAME PRESEN |
CONFIRMATION REPORT FROM RCIAL TAX DEPARTMENT TLY AS “SMART FAB”. |
THE THAT |
| EXT. P17:- | TRUE PHOTOCOPY OF THE CER A.SURESH BABU, CHARTERED 05/03/2016. |
TIFICATE/ OPINION ISSUED ACCOUNTANT, PALAKKAD D |
BY ATED |
| EXT. P18:- | TRUE PHOTOCOPY OF THE CE R.SUDHAKARA MENON, RETD, AS TAXES, PALAKKAD DATED 25/03/ IN PARA 4 OF COUNTER AF RESPONDENT. |
RTIFICATE/OPINION ISSUED ST. COMMISSIONER, COMMER 2016 AS REGARDS THE CONT FIDAVIT FILED BY THE |
BY CIAL ENTS 2ND |
| RESPONDENT( | S)' EXHIBITS : |
/TRUE COPY/
P.A.TO JUDGE
RVS.
A.K.JAYASANKARAN NAMBIAR, J.
W.P.(C). No. 4988 of 2016
===================================================== Dated this the 28th day of March, 2016
JUDGMENT
The challenge in the writ petition is against Exts.P6 to P13 assessment orders passed in relation to the petitioners under the Kerala Value Added Tax Act, hereinafter referred to as the KVAT Act. In the writ petition, the grievance of the petitioners is essentially that, there is a dispute with regard to the partnership firm and the identity of the partners during the relevant period and they alone cannot be made liable for the assessment of the firm. Although various contentions are raised in the writ petition with regard to factual aspects as to whether the details with regard to the identity of the partners was intimated to the respondent department, in a counter affidavit filed on behalf of the 2nd respondent, it is stated that a notice proposing an assessment was sent to all partners, including the petitioners herein, at their residential address, and they duly acknowledged the receipt of the proposal sent by registered post. A photo copy of the acknowledgment card, with signature of the 2nd petitioner is also produced as Ext.R2(a). It is stated in the counter affidavit that despite having received notice, the petitioners did not respond to the proposal for completing the assessment and did not avail of the
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W.P.(C). No. 4988 of 2016
opportunity of personal hearing that was granted to him. It was under said circumstances that Exts.P6 to P13 assessment orders are passed.
Taking note of the submission of the learned counsel for the
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W.P.(C). No. 4988 of 2016
petitioners that they would require some time to file appeals before the appellate authority under the KVAT Act, I direct that recovery steps for recovery of amounts confirmed against the petitioners by Exts.P6 to P13 assessment orders shall be kept in abeyance for a period of three weeks, so as to enable the petitioner to pursue his appellate remedy under the KVAT Act, in the meanwhile.
Sd/-
A.K.JAYASANKARAN NAMBIAR JUDGE
das /28.03.2016
2 issues framed by the court
Whether the writ petition challenging assessment orders under the KVAT Act is maintainable as a writ when factual disputes regarding partnership identity exist?
Whether the petitioners are liable for assessment of the firm given the dispute over partnership firm identity?
M/S.R & D FOAMS / K.R.RAJESH / SHEEBA A.S.
THE STATE OF KERALA REPRESENTED BY ITS SECRETARY, TAXES
COMMERCIAL TAX OFFICER 2ND CIRCLE, PALAKKAD
A.K.JAYASANKARAN NAMBIAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
