Allowed

Deepak T.Pottackal v. Assistant Commissioner

Kerala HC13 Jan 2016WP(C)/551/2016

Case brief

AI extract

What is this about?

The Kerala High Court quashed an assessment order under the Central Sales Tax Act that applied an erroneous tax rate and ignored subsequent documents. The Court directed the Assistant Commissioner to re-do the assessment, consider the documents, and pass fresh orders after hearing the petitioner.

What did the court decide?

Ext.P5 order quashed; petitioner directed to appear for assessment; Assistant Commissioner directed to redo assessment and pass fresh orders within one month.

Deepak T.Pottackal Vs Assistant Commissioner — Banking and Recovery | 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.K.JAYASANKARAN NAMBIAR

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WEDNESDAY, THE 13TH DAY OF JANUARY 2016/23RD POUSHA, 1937

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WP(C).No. 551 of 2016 (T)

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PETITIONER(S) :

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DEEPAK T.POTTACKAL, PROPRIETOR, M/S.DEEPAK TOMS DIAMONDS, TC 20/1434, 'JOSE BHAVAN', NEAR MAR APREM CHURCH, CHELAKKOTTUKARA, THRISSUR-680 005, THRISSUR DISTRICT.

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BY ADV. SRI.TOMSON T.EMMANUEL

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RESPONDENT(S) :

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1. ASSISTANT COMMISSIONER, SPECIAL CIRCLE, COMMERCIAL TAXES, POOTHOL, THRISSUR-680 004.

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2. INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, POOTHOL, THRISSUR-680 004.

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3. COMMISSIONER OF COMMERCIAL TAXES, TAX TOWER, KARAMANA, THIRUVANANTHAPURAM-695 033.

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BY GOVERNMENT PLEADER SRI.R.RENJITH

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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WP(C).No. 551 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 DATED 09-10-2015 FOR THE YEAR 2014-2015.

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P2: TRUE COPY OF NOTICE DATED 16-10-2015 ISSUED TO THE PETITIONER U/R.6(5) TO THE CST RULES, BY 1ST RESPONDENT FOR THE YEAR 2014-15 IN THE ABSENCE OF FILING AUDIT REPORT, 'C' FORM AGAINST CONCESSION CLAIMED AND NOT PROVING EXPORT SALES WITH DOCUMENTS.

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P3 : TRUE COPY OF LETTER DATED 19-10-2015 REQUESTING ENLARGEMENT OF TIME TO PRODUCE DOCUMENTS, SUBMITTED BEFORE 1ST RESPONDENT, AGAINST EXT P2 NOTICE.

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P4 : TRUE COPY OF ONLINE AUDIT REPORT DATED 28-10-2015 SUBMITTED BY PETITIONER BEFORE 1ST RESPONDENT FOR THE YEAR 2014-15.

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P4(A) : TRUE COPY OF STATEMENT OF INTERSTATE SALES AND COPY OF CORRESPONDING 'C' FORMS AND COPY OF EXPORT DOCUMENTS PRODUCE BEFORE 1ST RESPONDENT ALONG WITH EXT P4.

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P5 : TRUE COPY OF ASSESSMENT ORDER DATED 30-11-2015 COMMUNICATED TO THE PETITIONER BY 1ST RESPONDENT ON 18-12-2015, U/R. 6(5) OF THE CST RULES, WITHOUT ISSUING A NOTICE UNDER THE CST RULES.

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RESPONDENT(S)' EXHIBITS :

NIL

//TRUE COPY//

P.A.TO JUDGE.

Msd.

A.K.JAYASANKARAN NAMBIAR, J. ............................................................. W.P.(C).No.551 of 2016

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............................................................. Dated this the 13^th day of January, 2016

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J U D G M E N T

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The challenge in the writ petition is against Ext.P5 order of assessment in relation to the petitioner under the Central Sales Tax Act (hereinafter referred to as 'the CST Act') for the assessment year 2014-2015. The grievance of the petitioner in the writ petition is essentially that in Ext.P5 order, the demand confirmed against the petitioner is more than what was proposed in Ext.P2 pre-assessment notice that was issued to him. It is stated by counsel for the petitioner, with reference to Exts.P1,P2 and P5 documents, that the proposal in the pre-assessment notice was with regard to denial of concessional rate on a turnover of Rs.2,65,33,714/-. In Ext.P5 assessment order, while the concessional rate of tax on the said turnover has been denied for reasons stated therein, the rate of tax which was then applied was 5% in lieu of 1% which alone stood attracted to the goods in question. It is therefore that the demand came to be more than what was proposed in Ext.P2 notice. Counsel for the petitioner

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W.P.(C). No. 551 of 2016

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would also submit that he had furnished the 'C' Forms, 'H' Forms and other export documents to substantiate his claim for concessional rate of tax along with the audit report on 28.10.2015, while his reply to the pre-assessment notice was dated 19.10.2015. It is his contention that while passing Ext.P5 order, the assessing authority considered only the reply dated 19.10.2015 but did not take into account the documents subsequently produced under cover of letter dated 28.10.2015.

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I have heard the learned counsel for the petitioner and also the learned Government Pleader for the respondents.

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On a consideration of the facts and circumstances of the case and submissions made across the bar, I find that, the application of an erroneous rate of tax on the turnover confirmed in respect of the petitioner can be a ground for the petitioner seeking a rectification of Ext.P5 order. However, in this case, Ext.P5 order also does not take into account documents, that were subsequently filed by the petitioner under cover of a letter dated 28.10.2015, well before Ext.P5 order was passed, on 30.11.2015. Under the said circumstances, I am of the view that, rather than relegating

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W.P.(C). No. 551 of 2016

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the petitioner to the remedy of seeking a rectification against Ext.P5 order, it would be in the interests of justice to direct the 1^st respondent to redo the assessment in relation to the petitioner under the CST Act, after taking note of the discrepancy, if any, in the rate of tax adopted as also after considering the documents produced by the petitioner (Exts.P4(a) and P4(b), and further, hearing the petitioner before passing fresh orders of assessment in relation to the petitioner under the CST Act. To enable the 1^st respondent to do so, I quash Ext.P5 order and direct the petitioner to appear before the 1^st respondent at his office at 11 a.m on 21.01.2016 together with all relevant documents. The 1^st respondent shall pass fresh orders as directed within a month thereafter.

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A.K.JAYASANKARAN NAMBIAR JUDGE

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mns/13.01.16

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W.P.(C). No. 551 of 2016

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Deepak T.Pottackal v. Assistant Commissioner

Case brief

What is this about?

What did the court decide?

Deepak T.Pottackal v. Assistant Commissioner

Case brief

What is this about?

What did the court decide?

What the court decided

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