K.V.ABDUL GAFOOR V. COMMERCIAL TAX INSPECTOR

WP(C)/8532/2016

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The case involves a writ petition filed by K.V. Abdul Gafoor against the Commercial Tax Inspector and the Commissioner of Commercial Taxes, challenging the detention of a consignment of household articles. The respondents had detained the goods, demanding a security deposit for their release, suspecting the goods were intended for sale and not for personal use as claimed by the petitioner. The petitioner argued that the goods were for personal use and were accompanied by valid documentation, including Form-16 and Form-8F, uploaded on the KVATIS website on the date of detention. The court examined the submissions and documents presented, leading to the decision to release the goods and vehicle with conditions.

• Counselvise Citation: [2016] 140 COUNSELVISE.COM (IT) 726984 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 04-03-2016
• Assessment Year: misc
• Laws Referred To: Kerala Value Added Tax Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: LILLY
• Assessee Lawyers: TOMSON EMMANUEL
• Keywords: Detention Notice; Form 16; Form 8F; Goods Transportation; KVATIS; Security Deposit
• Section: 16; 8F

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR FRIDAY, THE 4TH DAY OF MARCH 2016/14TH PHALGUNA, 1937 WP(C).No. 8532 of 2016 (N) --------------------------- PETITIONER(S): -------------------------- K.V. ABDUL GAFOOR, AGED 46 YEARS, S/O. M.C. MOOSA, KUNUMMAL HOUSE, P.O. CHENDAY AD, KANNUR DISTRICT-670 692. BY ADV. SRI.TOMSON T.EMMANUEL. RESPONDENT(S): ---------------------------- 1. COMMERCIAL TAX INSPECTOR, COMMERCIAL TAXES CHECK POST, WALAYAR-678 625. 2. COMMISSIONER OF COMMERCIAL TAXES, TAX TOWER, KARAMANA P.O., THIRUVANANTHAPURAM-695 022. BY GOVT. PLEADER SMT.LILLY K.T . THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. WP(C).No. 8532 of 2016 (N) APPENDIX PETITIONER'S EXHIBITS:- EXT.P1 COPY OF THE PERMANENT ACCOUNT NUMBER BSYPA8426R ISSUED TO PETITIONER BY INCOME TAX DEPARTMENT. EXT.P1A COPY OF THE ELECTION IDENTITY CARD NO.DBK 1335108 ISSUED BY ELECTION COMMISSIONER OF INDIA TO PETITIONER. EXT.P2 COPY OF THE POSSESSION CERTIFICATE DATED 22/02/2016 FOR LANDED PROPERTY IN SURVEY NO.44/4 ISSUED TO PETITIONER BY VILLAGE OFFICER, PUTHUR. EXT.P2A COPY OF THE BUILDING PERMIT NO.39/2014-15 DATED 04/07/2014 ISSUED PETITIONER BY SECRETARY, KUNNOTHPARAMBA GRAMA PANCHAYATH. EXT.P2B COPY OF THE CERTIFICATE NO.80/16 DATED 24/02/2016 ISSUED TO PETITIONER BY VILLAGE OFFICER, PUTHUR, FOR THE PURPOSE OF ACCOMPANYING WITH FURNITURE TRANSPORTED TO PETITIONER FOR OWN USE. EXT.P3 COPY OF THE INVOICE NO.002 DATED 01/03/2016 ISSUED TO PETITIONER, AGAINST FULL RATE OF TAX UNDER THE CONSIGNER STATE LAWS, INTENDED FOR OWN USE. EXT.P3A COPY OF THE FORM NO.JJ HAVING SERIAL NO.002 DATED 01/03/2016 ACCOMPANIED WITH EXT.P3 INVOICE. EXT.P4 COPY OF THE FORM NO.16 ONLINE CERTIFICATE OF OWNERSHIP DATED 03/03/2016 GENERATED BY PETITIONER AT 04.03 A.M. ON THE BASIS OF EXT.P3, PRODUCED ALONG WITH TRANSPORT DOCUMENTS. EXT.P4A COPY OF THE ONLINE DECLARATION DATE 03/03/2016 IN FORM NO.8F PREPARED AND PRODUCED AT 05.37 A.M. FROM ONLINE FACILITY CENTRE NEAR THE CHECK POST. EXT.P5 COPY OF THE NOTICE NO.1/15-16 DATED 03/03/2016 ISSUED TO PETITIONER BY THE 1ST RESPONDENT AT 6.00 A.M., AFTER RECORDING THE TIME OF REACHING THE TRANSPORT VEHICLE IN PARKING AREA, AS THE TIME OF DECLARING THE GOODS. EXT.P6 COPY OF THE CIRCULAR NO.3/2015 DATED 14/01/2015 ISSUED BY 2ND RESPONDENT, FOR TRANSPORT OF GOODS FOR OWN USE. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.S. TO JUDGE rs. A.K.JAYASANKARAN NAMBIAR, J. ............................................................. W.P.(C).No.8532 of 2016 ............................................................. Dated this the 4th day of March, 2016 J U D G M E N T A consignment of household articles that was being transported at the instance of the petitioner was detained by the respondents. Ext.P5 is the detention notice. In the writ petition, the petitioner is aggrieved by the insistence of the respondents that the petitioner must pay the security deposit demanded in the detention notice as a condition for release of the goods and vehicle. 2. I have heard the learned counsel for the petitioner and also the learned Government Pleader for the respondents. 3. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I dispose the writ petition with the following directions: (i) On a perusal of Ext.P5 detention notice, it is seen that the objection of the respondents is essentially that the goods that were seen transported -2- W.P.(C). No.8532 of 2016 for own use of the consignee was not accompanied by a Form-16, and further, the respondents suspected that the goods were being transported for the purposes of subsequent sale within the State by a person who was not registered as a dealer. The learned counsel for the petitioner would submit that the consignment was transported for the own use of the petitioner and he had uploaded a Form -16 certificate as in the KVATIS website as early as 4.03 am on 03.03.2016, the date of detention. It is also pointed out that the Form-8F declaration was uploaded at 5.37 am on the date of detention and the detention notice, although states that that the detention was at 1.51 am, refers to the 8F declaration which was uploaded at 5.37 am. Taking note of the said submission of counsel for the petitioner and finding that the transportation of the goods was accompanied by valid documents as contemplated under the Kerala Value Added Tax Act. I direct the 1st respondent to release the goods and vehicle to the petitioner, on the petitioner furnishing a simple bond without surety for the security deposit amount demanded in Ext.P5. (ii) The 1st respondent shall thereafter transmit the files to the adjudicating authority who shall adjudicate the matter and pass orders, after hearing the petitioner, within two months from the date of receipt of a copy of this judgment. (iii) The petitioner shall produce a copy of this -3- W.P.(C). No.8532 of 2016 judgment and a copy of the writ petition before the 1st respondent. A.K.JAYASANKARAN NAMBIAR JUDGE mns/4.3.16 "