Remanded

K.v.Ajeesh v. State of Kerala

Kerala HC23 Jan 2019OT.Rev/106/2016

Case brief

AI extract

What is this about?

The High Court disposed of the revision by remanding the matter to the Assessing Officer for re-verification of tax discrepancies. The Court set aside the impugned orders to ensure verification against the revised return returned by the assessee, noting the original return was no longer available in the system. A cost of Rs.10,000 was imposed.

What did the court decide?

Orders impugned set aside; matter remanded to AO for re-verification based on revised return; cost of Rs.10,000 imposed.

K.v.Ajeesh Vs State of Kerala — Kerala HC (2019) — LawSathi Research

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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 K.VINOD CHANDRAN

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THE HONOURABLE MR. JUSTICE ASHOK MENON

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WEDNESDAY, THE 23RD DAY OF JANUARY 2019 / 3RD MAGHA, 1940

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O.T.Rev.No.106 of 2016

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AGAINST THE ORDER IN TA(VAT) NO.400/2014 DATED 30-12-2015 OF THE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, KOZHIKODE.

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REVISION PETITIONER/APPELLANT.PETITIONER/ASSESSEE:

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K.V.AJEESH, PROPRIETOR, KOCHUKUDIYIL AGENCIES, VADAKARA, KOZHIKODE.

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

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RESPONDENT/RESPONDENT/RESPONDENT/REVENUE:

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

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BY SENIOR GOVERNMENT PLEADER SRI.V.K.SHAMSUDHEEN

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THIS OTHER TAX REVISION (VAT) HAVING BEEN FINALLY HEARD ON 23.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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O.T.Rev.106 of 2016

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ORDER

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Vinod Chandran,J.

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We are faced with a peculiar situation where no possibility of a reconciliation exists, for reason of the original return uploaded in the system being no more available since a revised return has been uploaded by the assessee on permission given by the Department. While considering questions of law as raised from the order of the Tribunal, in the above revision, we found the facts to be such that a re-look by the Assessing Officer [for brevity “AO”] was necessitated.

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2. Additions were made on best judgment assessment especially noticing the fact that the purchases shown in the original returns filed by the assessee did not tally with the purchases as seen from the website of the Department. Notice was issued and an assessment order was passed on best judgment. The assessee is said to have not co-operated with the assessment proceedings. After assessment, the assessee took up the matter in appeals, before the first appellate authority and the Tribunal. The first appellate authority granted certain minor reliefs; but, the Tribunal affirmed the order of the first appellate

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authority. The revision petitioner is before us seeking

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O.T.Rev.106 of 2016 - 3 -

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indulgence insofar as a re-verification has to be carried out as per the reconciliation statement filed by them before this Court.

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3. Noticing the contentions raised by the assessee, we passed an order on 26.02.2018, which reads as under:

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“The revision arise from the order of the Tribunal which confirmed the assessment for the year 2010-11. In the assessment order, there was certain discrepancies even in the return and in the KVATIS. Certain purchases found in the KVATIS was found to be missing in the returns. An addition was made to the extent of Rs.12611581.87. Before the first appellate authority a reconciliation statement was filed. Minor modifications were made on grounds other than that specified by the assessee by way of the reconciliation statement. The Tribunal confirmed the order of the First Appellate authority.

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Before us it is contended that each of these items have been shown as disclosed in the returns itself. The learned Special Government Pleader submits that the Assessing Officer has been directed to verify certain aspects by the First Appellate Authority. In such circumstances, we are of the opinion that the assessee has to file a reconciliation statement here showing the

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O.T.Rev.106 of 2016 - 4 -

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invoice number, the dealer from whom the purchase was made, the value and the tax effect as also the corresponding entries in the returns, especially since there are certain figures stated to be not tallying. This shall be filed within a period of two weeks from today”.

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4. The assessee has filed a reconciliation

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statement at Annexure-N and the purchase lists at Annexures-O to Annexure-U with notice to the learned Government Pleader. The learned Government Pleader took time to verify the reconciliation statement. In fact, the submission made by the learned Counsel for the assessee is that there have been duplications at various instances. Specific reference is made to the month of August, 2010 wherein there were 88 purchases. In the purchase statement uploaded by the assessee along with the return showed the correct invoices from 1 to 44. However, from 45 to 84, the invoices at 1 to 44 were duplicated. It is also pointed out that there are other discrepancies with respect to the actual invoice price also.

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5. Reconciliation statement has been filed by the assessee as noticed above. The learned Government Pleader, on instructions from the AO submits that at present there is no possibility of cross verification with the original

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O.T.Rev.106 of 2016 - 5 -

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return, since that is no longer available in the system. When a revised return is filed, the original return is replaced by the revised return. The revised return shows the correct entries, even according to the assessee. In such circumstances, what could be done as of now is to look at the various discrepancies noticed in the assessment order and verify that with the revised return. If further discrepancies are noticed, definitely additions can be made. For such reverification, we are of the opinion that the matter should be remanded to the AO. However matters came to be so only because the assessee did not co-operate at the first instance with the assessment proceedings and hence we feel the remand can only be on terms. We set aside

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the orders impugned herein, not on merits but only to ensure that a reverification is done on the basis of the revised return filed on payment of Rs.10,000/- as cost to

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the Department under the Head of Account “0040-111-09” . The AO would verify the reconciliation statement produced at Annexure-N and the assessee would produce the books of accounts as required by the AO. The assessee shall appear before the AO on 04.04.2019 especially since as of now the financial year is closing. The AO shall take up the

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assessments and complete the same as expeditiously as

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O.T.Rev.106 of 2016 - 6 -

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possible. The assessee would not be entitled to raise grounds of limitation as the proceedings are revived consequent to the remand made by us. The Cost will be paid within one month from today failing which the directions herein will be rendered nugatory.

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The revision is disposed of with the above order of remand on terms.

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Sd/K.VINOD CHANDRAN JUDGE

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Sd/ASHOK MENON JUDGE

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O.T.Rev.106 of 2016

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APPENDIX

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PETITIONER'S ANNEXURES:

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ANNEXURE-A	COPY OF ORDER ISSUED BY THE COMMERCIAL TAX OFFICER-II, VATAKARA FOR THE YEAR 2010-11.
ANNEXURE-B	COPY OF APPELLATE ORDER OF THE DEPUTY COMMISSIONER (APPEALS), KOZHIKODE DATED 4/4/2013.
ANNEXURE-C	COPY OF STATEMENT OF CASE FILED BY THE COUNSEL FOR THE APPELLANT BEFORE THE VAT APPELLATE TRIBUNAL, KOZHIKODE DATED 12/11/2015
ANNEXURE-D	COPY OF PURCHASE LIST OF THE REVISION PETITIONER.
ANNEXURE-E	COPY OF RETURN OF THE REVISION PETITIONER FOR THE MONTH OF MAY 2010-11
ANNEXURE-F	COPY OF RETURN OF THE REVISION PETITIONER FOR THE MONTH OF JUNE 2010-11
ANNEXURE-G	COPY OF RETURN OF THE REVISION PETITIONER FOR THE MONTH OF AUGUST 2010-11
ANNEXURE-H	COPY OF RETURN OF THE REVISION PETITIONER FOR THE MONTH OF SEPTEMBER 2010-11.
ANNEXURE-I	COPY OF RETURN OF THE REVISION PETITIONER FOR THE MONTH OF OCTOBER 2010-11
ANNEXURE-J	COPY OF RETURN OF THE REVISION PETITIONER FOR THE MONTH OF NOVEMBER 2010-11
ANNEXURE-K	COPY OF RETURN OF THE REVISION PETITIONER FOR THE MONTH OF DECEMBER 2010-11
ANNEXURE-L	C.C. OF ORDER ISSUED BY THE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL, ADDL.BENCH, KOZHIKODE.
ANNEXURE-M	COPY OF THE LETTER FILED BEFORE THE COMMERCIAL TAX OFFICER, VATAKARA BY PETITIONER.
ANNEXURE-N	COPY OF RECONCILIATION STATEMENT WITH RESPECT TO THE UNACCOUNTED PURCHASES ALLEGED BY THE ASSESSING AUTHORITY.

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O.T.Rev.106 of 2016

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ANNEXURE-O COPY OF PURCHASE LIST AVAILABLE INT HE WEBSITE DEPARTMENT FOR THE MONTH OF MAY 2010 ANNEXURE-P COPY OF PURCHASE LIST AVAILABLE INT HE WEBSITE DEPARTMENT FOR THE MONTH OF JUNE 2010 ANNEXURE-Q COPY OF PURCHASE LIST AVAILABLE IN THE WEBSITE DEPARTMENT FOR THE MONTH OF AUGUST 2010 ANNEXURE-R COPY OF PURCHASE LIST AVAILABLE IN THE WEBSITE DEPARTMENT FOR THE MONTH OF SEPTEMBER 2010 ANNEXURE-S COPY OF PURCHASE LIST AVAILABLE IN THE WEBSITE DEPARTMENT FOR THE MONTH OF OCTOBER 2010 ANNEXURE-T COPY OF PURCHASE LIST AVAILABLE IN THE WEBSITE DEPARTMENT FOR THE MONTH OF NOVEMBER 2010 ANNEXURE-U COPY OF PURCHASE LIST AVAILABLE IN THE WEBSITE DEPARTMENT FOR THE MONTH OF DECEMBER 2010 Vku/-

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[true copy]

K.v.Ajeesh v. State of Kerala

Case brief

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K.v.Ajeesh v. State of Kerala

Case brief

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