Disposed

V.O.Jose v. Asst.Commissioner (Assmnt)

Kerala HC18 Mar 2024WP(C)/14296/2014

Case brief

AI extract

What is this about?

Dealer challenged VAT assessment orders adding turnover for alleged unaccounted purchases, claiming his TIN was misused. Court held disputed transactions required examination of records best done in statutory appeal and disposed of the writ petition directing condonation if appeals were filed within one month.

What did the court decide?

Appeals against assessment orders to be treated as filed within time if lodged within one month; liberty to seek records from Appellate Authority.

V.O.Jose Vs Asst.Commissioner (Assmnt) — Income Tax | Kerala HC (2024)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE GOPINATH P.

¶4

MONDAY, THE 18^TH DAY OF MARCH 2024 / 28TH PHALGUNA, 1945

¶5

WP(C) NO. 14296 OF 2014

¶6

PETITIONER/S:

¶7

V.O.JOSE M/S. JOSCO ENTERPRISES, PUNALUR, KOLLAM DISTRICT.

¶8

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

¶9

RESPONDENT/S:

¶10

1 ASST.COMMISSIONER (ASSMNT) COMMERCIAL TAXES SPECIAL CIRCLE, KOLLAM AT KOTTARAKKARA 691 506.

¶11

2 COMMISSIONER OF COMMERCIAL TAXES THIRUVANANTHAPURAM 695 001.

¶12

BY ADVS. SMT. THUSHARA JAMES, SR.GOVT. PLEADER

¶13

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶14

W.P (C) No.14296/2014

¶15

-2-

¶16

J U D G M E N T

¶17

The petitioner was an assessee under the Kerala Value Added Tax Act,2003. According to the petitioner he is a dealer in bricks, cement and M- sand. The petitioner was served with Ext.P2 series of pre-assessment notices for the period from August 2013 to December, 2013 proposing additions to the turn over on the allegation of unaccounted purchase. According to the petitioner, though the petitioner filed Ext.P3 series of replies against Ext.P2 series of pre-assessment notices requesting for copies of certain documents as well as requesting for the cross-examination of certain persons, the assessing officer proceeded to complete the assessment by Ext.P7 series of orders.

¶18

The learned counsel appearing for the petitioner would submit that, the Taxpayer Identification Number (TIN) of the petitioner was misused by certain persons for bringing goods from outside the State. It is submitted that these transactions have thereafter been assessed in the hands of the petitioner upon the allegations that these represent unaccounted purchase by the petitioner. It is submitted that several of the transactions mentioned in Ext.P7 series of assessment orders do not pertain to the petitioner. It is submitted that the petitioner had also made a complaint to the competent authority regarding the misuse of the TIN of the petitioner. It is submitted that the Assessing Authority was bound to establish as to whether any of the

¶19

W.P (C) No.14296/2014

¶20

-3-

¶21

unaccounted purchases alleged against the petitioner are on account of misuse of the TIN of the petitioner. It is submitted that the petitioner sought for check post declarations and invoices which were the only basis for determining unaccounted purchases by the petitioner and the same has been denied to him.

¶22

Learned Senior Government Pleader appearing for the respondents would vehementally contend that the petitioner is not entitled to any relief under Article 226 of the Constitution of India. It is submitted that a reading of Ext.P7 series of assessment orders would indicate that each of the assessment orders pertain to large number of transactions. It is submitted that even according to the petitioner only some among those transactions are on account of misuse of the TIN of the petitioner. It is submitted that even if those transactions are discounted there have been unaccounted purchases by the petitioner. It is submitted that in such circumstances if the petitioner is in any manner aggrieved by Ext.P7 series of assessment orders, the petitioner should have approached the Appellate Authority instead of filing a writ petition before this court.

¶23

Having heard the learned counsel appearing for the petitioner and the learned Senior Government Pleader, I am of the view that there is considerable merit in the contentions taken by the learned Senior

¶24

W.P (C) No.14296/2014

¶25

-4-

¶26

Government Pleader appearing for the respondents. It is clear from the submissions made before this court that while the petitioner has a specific case that the TIN of the petitioner was misused by someone leading to allegations that there have been many unaccounted purchases by the petitioner, this allegation does not appear to extend to all the transactions mentioned in Ext.P7 series of orders. Therefore even if the contention of the petitioner is accepted it will not be possible for this court to examine the transactions mentioned in Ext.P7 and to determine whether any of them were on account of misuse of the TIN of the petitioner, as indicated. Therefore, it is for the petitioner to avail statutory remedies against Ext.P7 series of assessment orders. Since the appeal is continuation of the original proceedings, it is open to the petitioner to request the Appellate Authority to call for and examine any records in order to enable the petitioner to establish at least some of the transactions mentioned in Ext.P7 series of assessment orders were on account of misuse of TIN of the petitioner. It is also open to the petitioner to request the Appellate Authority to summon and examine any records and also to provide copies of such records to the petitioner to enable the petitioner to prosecute the appeal in an effective manner.

¶27

It is seen that the writ petition was admitted by this court on 06-06-2014 and further proceedings on Ext.P7 were stayed. Taking into

¶28

W.P (C) No.14296/2014

¶29

-5-

¶30

consideration of the above I am inclined to direct that if the petitioner files statutory appeals against Ext.P7 series of assessment orders before the competent authority within a period of one month from the date of receipt of a certified copy of this judgment, those appeals shall be treated as ones filed within time. It will be open to the petitioner to file applications requiring the Appellate Authority to call for any records or any documents as held above. The request for cross examination may not be feasible at this point of time.

¶31

The writ petition is disposed of with the aforesaid directions. I make it clear that I have not expressed any opinion on the merits of the matter and it will be open to the Appellate Authority to decide the matter in accordance with the law.

¶32

Sd/- GOPINATH P. JUDGE

¶33

AMG

¶34

W.P (C) No.14296/2014

¶35

-6-

¶36

APPENDIX OF WP(C) 14296/2014

¶37

PETITIONER EXHIBITS

¶38

EXHIBIT P1. COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE OFFICER IN CHARGE OF ARYANKAVU CHECK POST DATED 04.12.12.

¶39

EXHIBIT P2. COPY OF PRE-ASSESSMENT NOTICE ISSUED BY THE IST RESPONDENT DATED 21.12.13.

¶40

EXHIBIT P2(A). COPY OF PRE-ASSESSMENT NOTICE ISSUED BY THE IST RESPONDENT DATED 21.12.13.

¶41

EXHIBIT P2(B). COPY OF PRE-ASSESSMENT NOTICE ISSUED BY THE IST RESPONDENT DATED 21.12.13.

¶42

EXHIBIT P2(C). COPY OF PRE-ASSESSMENT NOTICE ISSUED BY THE IST RESPONDENT DATED 21.12.13.

¶43

EXHIBIT P2(D). COPY OF PRE-ASSESSMENT NOTICE ISSUED BY THE IST RESPONDENT DATED 21.12.13.

¶44

EXHIBIT P3. COPY OF REPLY FILED BY THE PETITIONER BEFORE THE IST RESPONDENT DATED 15.02.14.

¶45

EXHIBIT P3(A).COPY OF REPLY FILED BY THE PETITIONER BEFORE THE IST RESPONDENT DATED 01.03.14.

¶46

EXHIBIT P3(B).COPY OF REPLY FILED BY THE PETITIONER BEFORE THE IST RESPONDENT DATED 01.03.14.

¶47

EXHIBIT P3(C).COPY OF REPLY FILED BY THE PETITIONER BEFORE THE IST RESPONDENT DATED 01.03.14.

¶48

EXHIBIT P3(D).COPY OF REPLY FILED BY THE PETITIONER BEFORE THE IST RESPONDENT DATED 01.03.2014.

¶49

EXHIBIT P4. COPY OF JUDGMENT IN WPC NO.3103/2014 OF THIS HONOURABLE COURT DATED 09.04.14.

¶50

W.P (C) No.14296/2014

¶51

-7-

¶52

EXHIBIT P5. COPY OF THE LETTER SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT DATED 29.04.14.

¶53

EXHIBIT P5(A).COPY OF POSTAL ACKNOWLEDGMENT CARD FROM THE POSTAL AUTHORITIES DATED 30.04.14.

¶54

EXHIBIT P6. COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 29.04.14.

¶55

EXHIBIT P7. COPY OF ORDER PASSED BY THE IST RESPONDENT DATED 21.02.14.

¶56

EXHIBIT P7(A). COPY OF ORDER PASSED BY THE IST RESPONDENT DATED 05.03.2014.

¶57

EXHIBIT P7(B). COPY OF ORDER PASSED BY THE IST RESPONDENT DATED 05.03.2014.

¶58

EXHIBIT P7(C).COPY OF ORDER PASSED BY THE IST RESPONDENT DATED 05.03.2014.

¶59

EXHIBIT P7(D).COPY OF ORDER PASSED BY THE IST RESPONDENT DATED 05.03.2014.

V.O.Jose v. Asst.Commissioner (Assmnt)

Case brief

What is this about?

What did the court decide?

V.O.Jose v. Asst.Commissioner (Assmnt)

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

Radhamani Vs Sub Collector/Tribunal for the Maintenance and Welfare of Parents and Senior Citizens

Wilson Mathew (Pan AILPM2852M), Vs the Income Tax Officer

A.Sulfikar Vs State of Kerala

Joy M.G. Vs the Executive Engineer

Marysadan Edathala International Pvt. Ltd. Vs the State of Kerala

Valsala Devi Vs Deputy Collector (La)