Allowed

Biji Bhasker v. the Commercial Tax Officer, Kayamkulam

Kerala HC31 Oct 2016WP(C)/8846/2016

Case brief

AI extract

What is this about?

The Court allowed a writ petition challenging an assessment order and penalty under the KVAT Act. Relying on Mooken Devassy, the Court held that denial of presumptive tax benefit (Section 6(5)) is impermissible if the total turnover, including suppressed amounts, remains under Rs. 60 lakhs. The orders were set aside for recomputation.

What did the court decide?

Impugned assessment order (Ext.P7) and penalty order (Ext.P8) set aside; Assessing Officer directed to recompute tax under Section 6(5) and penalty considering reply exhibits.

Biji Bhasker Vs the Commercial Tax Officer… — Pension and Retirement Benefits | 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. 8846 of 2016 (E)

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PETITIONER(S):

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BIJI BHASKER, PROPRIETOR, RUGMAL COLLECTIONS, LINK ROAD, KAYAMKULAM, ALAPPUZHA - 690 502.

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BY ADVS.SRI.V.DEVANANDA NARASIMHAM, SRI.P.H.RIYAS.

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RESPONDENT(S):

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1. THE COMMERCIAL TAX OFFICER, COMMERCIAL TAXES, KAYAMKULAM - 690 502.

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

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BY GOVT. 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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rs.

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WP(C).No. 8846 of 2016 (E)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXT.P1:	THE TRUE COPY OF THE ANNUAL RETURN DT. 02/06/2014 E-FILED BY THE PETITIONER IN KVATIS FOR THE YEAR 13-14.
EXT.P2:	THE TRUE COPY OF PRE-ASSESSMENT NOTICE DT. 20/11/2015 ISSUED U/S 25(1) OF THE KVAT ACT FOR 13-14 BY 1ST RESPONDENT TO THE PETITIONER.
EXT.P3:	THE TRUE COPY OF REPLY DT. 14-12-2015 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT AGAINST EXBT-P2 NOTICE.
EXT.P4:	THE TRUE COPY OF PRE-ASSESSMENT NOTICE (REVISED) DT. 30/12/2015 ISSUED U/S 25(1) OF THE KVAT ACT FOR 13-14 BY 1ST RESPONDENT TO PETITIONER.
EXT.P5:	THE TRUE COPY OF REPLY DT. 11/01/2016 FILED BY THE PETITIONER DULY ACKNOWLEDGED BY 1ST RESPONDENT ON 13/01/2016.
EXT.P6:	THE TRUE COPY OF THE LETTER DT. 07/12/2015 SUBMITTED BY SELLING DEALER BEFORE 1ST RESPONDENT ADMITTING HIS MISTAKE IN FILING THE RETURN ALONG WITH EVIDENCE & EXBT-P5.
EXT.P7:	THE TRUE COPY OF THE ASSESSMENT ORDER DT. 02/02/2016 FOR THE YEAR 13-14 PASSED BY 1ST RESPONDENT AGAINST PETITIONER U/S 25(1) OF THE KVAT ACT.
EXT.P8:	THE TRUE COPY OF THE PENALTY ORDER DT. 02/02/2016 ISSUED U/S 22(7) BY 1ST RESPONDENT TO THE PETITIONER SIMULTANEOUSLY TO EXT. P7 ASSESSMENT ORDER ALONG WITH DEMAND NOTICE FOR THE YEAR 13-14.

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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. 8846 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 who is a registered dealer under the KVAT Act who had opted for tax at 0.5% of the KVAT Act as a presumptive dealer challenges the assessment order as well as the penalty order inter alia contending that though the turnover is less than `60 lakhs, still, the assessing officer has assessed higher rate of tax alleging suppression of turnover and has also imposed penalty for the same.

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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

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W.P(C) No.8846/16

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-:2:-

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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 facts, I am of the view that this writ petition is to be allowed. Accordingly, the impugned orders, Exts.P7 and Ext.P8 are set aside. The assessing officer is directed to recompute the tax payable on the basis of Section 6 (5) of the KVAT Act and also the penalty in terms with the alleged suppression taking into consideration Exts.P3 and P5.

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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

Biji Bhasker v. the Commercial Tax Officer, Kayamkulam

Case brief

What is this about?

What did the court decide?

Biji Bhasker v. the Commercial Tax Officer, Kayamkulam

Case brief

What is this about?

What did the court decide?

What the court decided

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