Dismissed

Malabar Gold (P) Ltd. v. the Commissioner, Commercial Taxes

Kerala HC10 Aug 2022OT.Appeal/2/2016

Case brief

AI extract

What is this about?

The High Court disposed of the appeal challenging the Commissioner's sua motu revision order which set aside penalty orders and remanded the matter. The Court modified the remand to direct fresh disposal by the Joint Commissioner of Sales Tax Appeals, Kozhikode, instead of the Intelligence Officer.

What did the court decide?

Order remanding the case to the Joint Commissioner of Sales Tax Appeals, Kozhikode, for fresh disposal after opportunity of hearing.

Malabar Gold (P) Ltd. Vs the Commissioner, Commercial… — Company and Corporate | Kerala HC (2022)

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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 S.V.BHATTI

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THE HONOURABLE MR.JUSTICE BASANT BALAJI

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WEDNESDAY, THE 10TH DAY OF AUGUST 2022 / 19TH SRAVANA, 1944

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OT.APPEAL NO.2 OF 2016

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(AGAINST THE ORDER OF THE COMMISSIONER, COMMERCIAL TAXES,
THIRUVANANTHAPURAM DATED 17.11.2015 PASSED
IN ORDER NO.R2-35567/14/CT)

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APPELLANT/PETITIONER:

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MALABAR GOLD (P) LTD.,
(FORMERLY MALABAR GOLD ORNAMENT MAKERS (P) LTD)
RAM MOHAN ROAD, CALICUT,
REPRESENTED BY ITS DIRECTOR A.K.NISHAD.

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BY ADVS.
K.P.ABDUL AZEES
T.ARCHANA

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RESPONDENTS/RESPONDENTS:

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1 THE COMMISSIONER, COMMERCIAL TAXES, THIRUVANANTHAPURAM 695 001.

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2 THE DEPUTY COMMISSIONER, COMMERCIAL TAXES, KOZHIKODE 673 004

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3 INTELLIGENCE OFFICER (IB)-1, COMMERCIAL TAXES, KOZHIKODE 673 004.

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THIS OTHER TAX APPEAL HAVING COME UP FOR ADMISSION ON
10.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.T.Appeal No.02/2016

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ORDER

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(Dated: 10th August, 2022)

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Basant Balaji, J

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The assessee – a company engaged in the

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manufacturing and wholesale business of gold ornaments

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has filed this appeal, aggrieved by the order in suo
motu revision under Section 58 of the KVAT Act, 2003

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by the Commercial Taxes Department,

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Thiruvananthapuram.

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2. Proceedings were initiated by the

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Intelligence Officer under Section 40 of the KVAT Act,

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2003, and Section 6 of the CST Act, 1956 for the
imposition of penalty. After giving notice proposing

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to impose a penalty and giving an opportunity to file
objections, hearing the parties, passed Exts.A5 and A6
order imposing a penalty of Rs.13,68,56,154/-and
Rs.1,56,18,580/-under Section 67(1) of the KVAT Act.

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The petitioner filed R.P.Nos.182 & 183 of 2014 before

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the Deputy Commissioner, Commercial Taxes, Kozhikode

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against the order imposing penalty under CST Act and

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O.T.Appeal No.02/2016

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KVAT Act. The Deputy Commissioner by Annexure-A9 order
allowed the revisions and annulled the penalty orders
holding that the Intelligence Officer has not
established mens rea or the guilty mind of the
petitioner to evade tax legitimately due to the
Government and the petitioner has not committed any
offence punishable under Section 67 of the KVAT Act or
under the provisions of the CST Act. The order was
passed on 30.07.2014.

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 3. The Commissioner of Commercial Taxes

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Department, Thiruvananthapuram, initiated suo motu
revision under Section 58 of the KVAT Act against the
appellant in respect of the order passed by the Deputy
Commissioner, Kozhikode, in R.P.Nos.182 & 183 of 2014,
whereby the penalty orders were set aside. The
Commissioner after perusing the files and hearing the
petitioner and the revenue, set aside the order of the
Deputy Commissioner, Kozhikode, and the Intelligence
Officer, Kozhikode, was directed to conduct a detailed
verification within three months from the date of
receipt of the copy of the order, after affording an

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O.T.Appeal No.02/2016

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opportunity of being heard to the dealer and the case
was remitted to the Intelligence Officer (IB) for fresh
disposal in accordance with the law. Challenging the
said order, this appeal is filed.

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4. The main contention raised by the counsel

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for the appellant is that, the order dated 20.12.2012
is barred by limitation as provided under Section 67
of the KVAT Act, as it was passed after 5 years and
356 days from the date of detection of the offence on
29.12.2006. The Commissioner in suo motu revision has

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not gone into the question of limitation provided under
Section 67 of the KVAT Act and if the said question

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was gone into, remand by the Commissioner was
unnecessary. The Deputy Commissioner has clearly found
that the appellant is maintaining proper books of

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account in support of the job work of despatch and job
work of receipts and the entire transactions have been
properly accounted including the details of gold sent
for manufacture and new gold received after

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manufacturing. In such a case, there arises no
suppression or offence under the KVAT Act enabling the

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O.T.Appeal No.02/2016

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department to invoke Section 67(1) of the KVAT Act and
impose a penalty.

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We have gone through the order of the Commissioner

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under suo motu revision, and we are of the considered
opinion that the Commissioner has stated reasons for

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remanding the matter to the Intelligence Officer for
fresh disposal after noting six aspects to be looked
into by the Intelligence Officer. We are not
interfering with the order of the Commissioner except

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to the fact that the case was remitted back to the
Intelligence Officer is modified and ordered that the

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case file shall be remitted to the Joint Commissioner

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of Sales Tax Appeals, Kozhikode, for fresh disposal in
accordance with law, after giving the assessee an
opportunity of hearing.

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Accordingly, O.T.Appeal is disposed of.

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 Sd/-

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 S.V.BHATTI, JUDGE

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 BASANT BALAJI, JUDGE

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O.T.Appeal No.02/2016

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APPENDIX OF OT.APPEAL 2/2016

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PETITIONER ANNEXURES:

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Annexure A1THE TRUE COPY OF NOTICE NO. TCR - 08/06-07
DATED 29.12.2006 ISSUED BY INTELLIGENCE
OFFICER, SQUAD NO.I, KOZHIKODE.
Annexure A2THE TRUE COPY OF NOTICE NO. TCR-08/2006-07
DATED 09.01.2007 ISSUED BY INTELLIGENCE
OFFICER, SQUAD NO.I, COMMERCIAL TAXES,
KOZHIKODE.
Annexure A3THE TRUE COPY OF THE REPLY FILED BY THE
APPELLANT.
Annexure A4THE TRUE COPY OF THE PENALTY OF ORDER NO.
IB I-31/11-12/C/2005-06 DATED 20.12.2012 OF
RS.2,67,01,099/- PASSED BY INTELLIGENCE
(IB) I, KOZHIKODE.
Annexure A5THE TRUE COPY OF PENALTY ORDER NO.IB I-
31/09-10/C DATED 07.05.2013 FOR RS.
13,68,56,154/- PASSED BY INTELLIGENCE (IB)
I, KOZHIKODE.
Annexure A6THE TRUE COPY OF PENALTY ORDER NO.IB I-
31/09-10/C DATED 07.05.2013 FOR RS.
1,56,18,580/- PASSED BY INTELLIGENCE (IB)
I, KOZHIKODE.
Annexure A7THE TRUE COPY OF GOVERNMENT LETTER NO.
28816/B3/2012/TD DATED 30.05.2013.
Annexure A8TRUE COPY OF THE LETTER OF COMMISSIONER,
COMMERCIAL TAXES VIDE NO.C1-19695/12/CT
DATED 12.06.2013.
Annexure A9THE TRUE COPY OF COMMON REVISION ORDER IN
RP 182/2014 AND 183/2014 DATED 30.07.2014
PASSED BY DEPUTY COMMISSIONER, KOZHIKODE.
Annexure A10THE TRUE COPY OF NOTICE OF THE
COMMISSIONER, COMMERCIAL TAXES,
THIRUVANANTHAPURAM.
Annexure A11THE ORIGINAL REVISION ORDER OF
COMMISSIONER, COMMERCIAL TAXES,
THIRUVANANTHAPURAM.

Malabar Gold (P) Ltd. v. the Commissioner, Commercial Taxes

Case brief

What is this about?

What did the court decide?

Malabar Gold (P) Ltd. v. the Commissioner, Commercial Taxes

Case brief

What is this about?

What did the court decide?

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