Disposed

Jojo Kurian v. the Intelligence Officer

Kerala HC1 Dec 2023WP(C)/11435/2018

Case brief

AI extract

What is this about?

In this writ petition, the petitioner challenged an appellate order by the Assistant Commissioner (Appeals) regarding a penalty for lack of resort registration under the Kerala Tax on Luxuries Act. The High Court dismissed the writ petition, holding the Assistant Commissioner competent under amended Section 55 of the KVAT Act and noting that jurisdictional objections must be raised earlier. The co

What did the court decide?

Writ petition dismissed; petitioner granted opportunity to file appeal before the Tribunal in pending State appeal proceedings.

Jojo Kurian Vs the Intelligence Officer — Pension and Retirement Benefits | Kerala HC (2023)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

¶2

THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
FRIDAY, THE 1ST DAY OF DECEMBER 2023 / 10TH AGRAHAYANA, 1945
WP(C) NO. 11435 OF 2018

¶3

PETITIONER:

¶4

JOJO KURIAN,
PROPRIETOR, M/S. ALLENS COTTAGE,
LETCHMI ESTATE, MUNNAR-685612.

¶5

BY ADVS.
 SRI. P. N. DAMODARAN NAMBOODIRI
 SRI. P. UNNIKRISHNAN THRISSUR

¶6

RESPONDENTS:

¶7

1 THE INTELLIGENCE OFFICER, SQUAD NO. IV, DEPT. OF COMMERCIAL TAXES, IDUKKI AT NEDUNKANDAM-685553.

¶8

2 THE DEPUTY COMMISSIONER APPEALS, DEPARTMENT OF COMMERCIAL TAXES, KOTTAYAM-686001.

¶9

3 THE ASSISTANT COMMISSIONER APPEALS, DEPARTMENT OF COMMERCIAL TAXES, IDUKKI AT KATTAPPANA-685508.

¶10

4 THE VAT APPELLATE TRIBUNAL, DEPT. OF COMMERCIAL TAXES, ADDL. BENCH, KOTTAYAM-686001.

¶11

5THE DEPUTY COMMISSIONER,
INT COMMERCIAL TAXES, 1ST FLOOR,
TAX TOWERS, KARAMANA P. O.,
THIRUVANANTHAPURAM-695002.

¶12

6 THE DEPUTY TAHSILDAR R. R., O/O. THE DEPUTY TAHSILDAR (R.R.), DEVIKULAM TALUK, IDUKKI-685603.

¶13

7 THE JOINT COMMISSIONER (APPEALS), STATE GOODS AND SERVICE TAX DEPARTMENT, PUBLIC LIBRARY BUILDING, SASTRI ROAD, KOTTAYAM (SOUGHT TO BE IMPLEADED). BY ADV. SMT. JASMINE M. M. - GP

¶14

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶15

WP(C) NO. 11435 OF 2018

¶16

¶17

DINESH KUMAR SINGH, J.

¶18

W.P.(C) No.11435 of 2018

¶19

Dated this the 1^st day of December, 2023

¶20

JUDGMENT

¶21

The present writ petition has been filed impugning the Exhibits P-2 dated 12.05.2016 issued by the 1^st respondent Intelligence Officer and P-5 appellate orders passed by the Assistant Commissioner

¶22

(Appeals) Commercial Taxes, 3^rd respondent dated 14.08.2017.

¶23

The 1^st respondent, Intelligence Officer passed an order under Section 17(A) of the Kerala Tax on Luxuries Act, 1976 on 12.05.2016 imposing a penalty of Rs. 3,93,120/- for the assessment year 2014-15. While conducting inspection on the business premises of the petitioner, the Intelligence Inspector noticed that the petitioner had started a Resort w.e.f. 05.11.2011 and the petitioner had not taken registration of the said resort under the provisions of Kerala Tax on Luxuries Act, 1961. Against the said order the petitioner filed an appeal and the appeal came to be decided by the impugned Exhibit P- 5 order dated 14.08.2017. The appellate authority, however, has held that the Resort of the petitioner is a four rooms Home Stay is liable to tax on Luxuries Taxes under Section 2(df) and 4(2)(f) of the

¶24

WP(C) NO. 11435 OF 2018

¶25

¶26

Act. The petitioner has failed to do so and the appeal got dismissed. Against the said order the State has also filed appeal before the the Tribunal in respect of the observation that the petitioner is running a home stay and not a resort/hotel.

¶27

The petitioner has approached this Court by filing this writ petition instead of filing the statutory appeal on the ground that the impugned order has been passed by the Assistant Commissioner (Appeals) whereas the competent authority to decide the appeal is the Deputy Commissioner. The learned Counsel for the petitioner submits that for this reason the decision on appeal is to be treated as nonest and void. On the other hand learned Government Pleader, Ms. M. M. Jasmine submits that there is no independent authorities have been constituted under the Kerala Tax on Luxuries Act, 1976. The Authorities under the provisions of Kerala Value Added Taxes Act carry out the assessment and appeals against the assessment orders are filed before the authorities constituted under the KVAT Act, 2003. It is submitted that by way of Kerala Finance Act, 2010 Section 55 of the KVAT Act was amended w.e.f. 01.04.2005 and for appeals, the Assistant Commissioner was made the competent authority in place of Deputy Commissioner of Appeals to hear and decide the

¶28

WP(C) NO. 11435 OF 2018

¶29

¶30

appeals. It is further submitted that this amended provision would also cover the appeal filed under the provisions of the Kerala Tax on Luxuries Act, 1976 inasmuch as the Authorities for assessment and appeals are the authorities which have been constituted under the provisions of the Kerala Value Added Tax Act, 2003.

¶31

It is further submitted that the petitioner never raised objection regarding the jurisdiction of the 3^rd respondent and without any demur, he participated in the appeal proceedings and once he had suffered an adverse order by the appellate authority, the petitioner has raised this objection for the first time before this Court in this writ petition. It is further submitted that the writ petition is liable to be dismissed.

¶32

I have considered the submissions. It is not in dispute that the authorities which have been empowered to make the assessment and decide the appeals are the authorities which have been constituted under the provisions of the Kerala Value Added Tax Act, 2003. Section 55 does not limit the appeal provisions only in respect of the assessment order passed under the Kerala Value Added Tax Act. Every appeal which was otherwise to be filed before the Deputy Commissioner (Appeals) is now to be filed before the Assistant

¶33

WP(C) NO. 11435 OF 2018

¶34

¶35

Commissioner of Appeals in view of the Finance Act, 2010. Therefore, I do not find much substance in the submission of the learned Counsel for the petitioner that the Assistant Commissioner of Appeals who has decided decided the Appeal in Exhibit P-5 is not the competent authority. Furthermore, the petitioner never raised this objection regarding the jurisdiction before the 3^rd respondent and only after he has suffered an adverse order, he has raised the objection before this Court for the first time. If the petitioner had doubt about the jurisdiction of the 3^rd respondent, he should have raised the objection before the said authority itself. Once the order is passed and the order has gone against the petitioner, the petitioner cannot challenge the order on the ground that the 3^rd respondent has no jurisdiction.

¶36

Considering the aforesaid, I do not find any substance in this writ petition and it is hereby dismissed. However, the petitioner is provided an opportunity to file appeal appeal before the Tribunal inasmuch as the appeal filed by the State is still pending for final decision and as per the learned Government Pleader the next date of hearing of the appeal is 19.12.2023. If the petitioner files the appeal against the Exhibit P-5 order before the Tribunal before 19.12.2023,

¶37

WP(C) NO. 11435 OF 2018

¶38

¶39

the Tribunal should proceed to hear both the appeals i.e., appeal filed by the State and the petitioner on merit in accordance with the law without going into the question of limitation in filing the appeal by the petitioner.

¶40

Sd/DINESH KUMAR SINGH

¶41

JUDGE

¶42

Svn

¶43

WP(C) NO. 11435 OF 2018

¶44

¶45

APPENDIX OF WP(C) 11435/2018

¶46

PETITIONER’S EXHIBITS

¶47

`EXHIBIT`	`P1` `TRUE COPY OF THE SHOP INSPECTION REPORT NO.` `485619 ON 19.02.2015, ISSUED BY THE 1ST` `RESPONDENT TO THE PETITIONER`
`EXHIBIT`	`P2` `TRUE COPY OF THE PENALTY ORDER NO. ISI IV/CR` `31/14-15 DATED 12.05.2016 FOR THE YEAR 2014-` `15 ISSUED BY THE 1ST RESPONDENT TO THE` `PETITIONER`
`EXHIBIT`	`P3` `TRUE COPY OF THE APPEAL DATED 25.06.2016 FOR` `THE YEAR 2014-15 FILED BY THE PETITIONER` `BEFORE THE 2ND RESPONDENT`
`EXHIBIT`	`P4` `TRUE COPY OF THE STAY ORDER NO. LTA.33/2016` `DATED 23.12.2016 FOR THE YEAR 2014-15 ISSUED` `BY THE 2ND RESPONDENT TO THE PETITIONER`
`EXHIBIT`	`P4A` `TRUE` `COPY` `OF` `THE` `CHALAN` `NO.` `KL004839073201617M DATED 23.01.2017 REMITTED` `BY THE PETITIONER`
`EXHIBIT`	`P5` `TRUE COPY OF THE APPELLATE ORDER NO.LT 33/16` `DATED 14.08.2017 FOR THE YEAR 2014-15 PASSED` `BY THE 3RD RESPONDENT`
`EXHIBIT`	`P6` `TRUE COPY OF THE 2ND APPEAL VAT APPEAL NO.` `85/2018 DATED 20.03.2018 FOR THE YEAR 2014-15` `FILED BY THE 5TH RESPONDENT BEFORE THE 4TH` `RESPONDENT`

Jojo Kurian v. the Intelligence Officer

Case brief

What is this about?

What did the court decide?

Jojo Kurian v. the Intelligence Officer

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Abdul Majeed, Vs Santhosh.

Sulthan Bathery Leisure Llp, Vs State of Kerala

Kovilakam Residency Pvt. Ltd., Vs State of Kerala

Babu.S, Vs State of Kerala

M/S Lailak Gold, Vs National Faceless Assessment Centre (Nafac)

Satyam Steels, Vs the Assistant Commissioner