M/S. TEE VEE SON TRADING V. AGRICULTURAL INCOME TAX

WP(C)/9301/2017

AI Insights

The case involves M/S. Tee Vee Son Trading Co., the petitioner, who challenged an assessment order under the KVAT Act, claiming they had not received the requisite notice. The respondents included various tax officials and the State of Kerala. The court examined the documents and found that the petitioner had indeed received the notice under the KVAT Act, as evidenced by the postal records and the petitioner's own subsequent filings. The court concluded that the petitioner was not denied the opportunity to contest the assessment and could appeal the decision.

• Counselvise Citation: [2017] 140 COUNSELVISE.COM (IT) 761293 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 10-04-2017
• Assessment Year: misc
• Laws Referred To: Kerala Value Added Tax Act, 2003, Central Sales Tax Act, 1956
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: V K SHAMSUDHIN
• Assessee Lawyers: TOMSON EMMANUEL
• Keywords: Assessment Order; CST Act; KVAT Act; Notice issuance; Tax dispute
• Section: 6.5%

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN MONDAY, THE 10TH DAY OF APRIL 2017/20TH CHAITHRA, 1939 WP(C).No. 9301 of 2017 (K) --------------------------- PETITIONER: ----------- M/S. TEE VEE SON TRADING CO. BANK ROAD, NEAR NH 47, ALATHOOR-678 541, PALAKKAD DISTRICT, REPRESENTED BY ITS MANAGING PARTNER SRI.T.V.SAJU. BY ADV. SRI.TOMSON T.EMMANUEL RESPONDENTS: ------------ 1. AGRICULTURAL INCOME TAX AND COMMERCIAL TAX OFFICER COMMERCIAL TAXES, ALATHOOR-678 541, PALAKKAD DISTRICT. 2. INSPECTING ASSISTANT COMMISSIONER COMMERCIAL TAXES, CHITTOOR-678 101. 3. COMMISSIONER OF COMMERCIAL TAXES TAX TOWER, KARAMANA PO, THIRUVANANTHAPURAM-695 001 4. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. BY GOVERNMENT PLEADER SRI.V.K. SHAMSUDHIN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10-04-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 9301 of 2017 (K) --------------------------- APPENDIX PETITIONER(S)' EXHIBITS ----------------------- P1 : TRUE COPY OF ANNUAL RETURN DATED 20-09-2011 SUBMITTED BY PETITIONER FIRM BEFORE 1ST RESPONDENT FOR AUGUST 2011 WITH UPLOADING DETAILS OF PURCHASES. P2 : TRUE COPY OF NOTICE U/R6(5) OF THE CENTRAL SALES TAX RULES FOR THE YEAR 2011-12 ISSUED TO PETITIONER IN PROPOSING TO COMPLETE ASSESSMENT UNDER THE CST ACT, ALLEGING UNACCOUNTED TRANSACTION FOR RS.10,93,950/- AND WITHOUT MAKING ANY OTHER PROPOSAL. P3 : TRUE COPY OF REPLY DATED 18-11-2016 SUBMITTED BY PETITIONER BEFORE 1ST RESPONDENT WITH PROOF OF ACCOUNTING AND REPORTING OF THE ALLEGED TRANSACTION, AGAINST EXT P2 NOTICE. P3(A) : TRUE COPY OF INVOICE NO.85 DATED 8-8-2011 UPLOADED IN EXT P1 RETURN PRODUCED BEFORE 1ST RESPONDENT. P4 : TRUE COPY OF ORDER DATED 9-12-2016 FOR THE YEAR 2011-12 SERVED TO THE PETITIONER ON 11-3-2017 IN COMPLETING ASSESSMENT UNDER THE KVAT ACT. RESPONDENTS' ANNEXURES ----------------------- R1(A) TRUE COPY OF THE NOTICE R1(B) TRUE COPY OF THE RELEVANT PAGE OF THE DESPATCH REGISTER WITH POSTAL RECEIPT R1(C) TRUE COPY OF THE LETTER DATED 14.11.2016 R1(D) TRUE COPY OF THE OBJECTION DATED 17.11.2016 R1(E) TRUE COPY OF THE NOTICE ISSUED UNDER RULE 6(5) OF CST (KERALA) RULES R1(F) TRUE COPY OF THE LETTER //TRUE COPY// P.A. TO JUDGE JJJ K. VINOD CHANDRAN, J. ------------------------------------------ W.P.(C) No. 9301 of 2017 (K) ------------------------------------------ Dated: 10th April, 2017 J U D G M E N T The petitioner is aggrieved with Ext.P4 assessment order. The contention taken in the writ petition is that the petitioner was never issued with a notice under the Kerala Value Added Tax Act, 2003 ('KVAT Act' for short). The petitioner admits that the petitioner was issued with a notice under the Central Sales Tax Act, 1956 ('CST Act' for short), for which objection was given as per Ext.P3. The proceedings taken under the CST Act is stated to have been dropped in the counter affidavit of the State. The specific contention taken up by the petitioner is that the petitioner had not received any notice under the KVAT Act; the assessment of which is seen completed at Ext.P4. W.P.(C) No. 9301/2017 -2- 2. The Assessing Officer has filed a detailed counter affidavit producing documents evidencing the issuance of notice. The Register of issuance of notice is also produced before me in original. A verification indicates that a pre-assessment notice, under the KVAT Act, was issued on 25.10.2016. The notice, under the CST Act, was issued on 27.10.2016. The petitioner received both the said notices. The receipt of the notices sent on 25.10.2016 has been certified by the Office of the Post Master, Alathur, by Annexure R1(f). Annexure R1(f) was necessitated only since the acknowledgement card, with respect to notice under the KVAT Act, had not been returned. It is also seen that Annexure R1(c) dated 14.11.2016 was filed before the Officer. W.P.(C) No. 9301/2017 -3- 3. The learned Counsel for the petitioner submits that Annexure R1(c) is an adjournment application for the CST assessment. However, an objection is also seen to have been filed as per Annexure R1(d) dated 17.11.2016. The contents of the said objection is found to be similar to that of Ext.P3. However, Ext.P3 and Annexure R1(d) were separately received in the Office of the Assessing Officer. Ext.P3 dated 18.11.2016 specifically shows it to be an objection to a notice under Section 6(5) of the CST Act. If Annexure R1(d) was filed as against the CST Act, there was no necessity to file another objection on the very next day by Ext.P3. This would only indicate that the petitioner has filed the said objection (Annexure R1(d)) under the KVAT Act; however, with the details under the CST Act. In such circumstance, it cannot be said that the petitioner did W.P.(C) No. 9301/2017 -4- not receive the notice under the KVAT Act. The submission made by the petitioner in the writ petition is found to be incorrect and in such circumstance, the petitioner would be left remedy to file an appeal from Ext.P4 order. The petitioner, if filing an appeal within one month, the delay shall not be taken into account and the appeal shall be considered on merits. The writ petition is rejected with the above observation. Sd/- K.VINOD CHANDRAN, JUDGE jjj 11/4/17 "