Peejay Mobiles Pvt. Ltd. V. Assistant Commissioner, Special Circle-III, Commercial Taxes, Ernakulam and Deputy Commissioner (Appeals), Commercial Taxes, Ernakulam and The Tahsildar (Revenue Recovery) Kanayannur

WP(C)/2752/2007

AI Insights

The case involves Peejay Mobiles Pvt. Ltd., which faced an ex parte assessment order under the KGST Act for the assessment year 1999-00. The petitioner contended that they had paid all due taxes, including those covered by a cheque that was allegedly dishonoured, and sought to correct the records with the Tahsildar. The appellate authority required proof of payment to proceed with the appeal, leading to the writ petition. The court's decision allowed the use of an auditor's certificate to verify tax payments for the purpose of entertaining the appeal.

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 690082 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 20-09-2012
• Assessment Year: misc
• Laws Referred To: KGST Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: SOBHA EAPPEN
• Assessee Lawyers: R MURALIDHARAN
• Keywords: Admitted tax; Audit certificate; Cheque dishonour; Ex parte assessment; Revenue recovery
• Section: 34(1)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC THURSDAY, THE 20TH DAY OF SEPTEMBER 2012/29TH BHADRA 1934 WP(C).No. 2752 of 2007 (C) -------------------------- PETITIONER(S): ------------- PEEJAY MOBILES PVT. LTD., 9/579, KADAVANTARA, COCHIN REP.BY ITS MANAGING DIRECTOR, P.J.VARGHESE. BY ADV. SRI.R.MURALIDHARAN (AROOR) RESPONDENT(S): -------------- 1. ASSISTANT COMMISSINER, SPECIAL CIRCLE-III, COMMERCIAL TAXES, ERNAKULAM. 2. DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, ERNAKULAM. 3. THE TAHSILDAR (REVENUE RECOVERY) KANAYANNUR. BY ADV. GOVERNMENT PLEADER SOBHA ANNAMMA EAPPEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).2752/07 APPENDIX EXHIBITS P1- TRUE COPY OF THE ASSESSMENT ORDER PASSED BY THE 1ST RESPONDENT DATED 24.3.04 P2- TRUE COPY OF THE STATEMENT SHOWING THE TAX DUE AND PAID BY THE PETITIONERS FOR THE RELEVANT YEAR SUBMITTED TO THE 1ST RESPONDENT P3- TRUE COPY OF THE STATEMENT SHOWING THE PARTICULARS OF REMITTANCE OF TAX BY THE PETITIONERS FOR THE YEAR P4- TRUE COPY OF THE APPEAL FILED BEFORE THE 2ND RESPONDENT DATED 23.6.04 P5- TRUE COPY OF THE LETTER SHOWING REMITTANCE PARTICULARS ISSUED BY THE 3RD RESPONDENT DATED 23.6.00 P6- -DO- -DO- DATED 13.12.2004 P7- TRUE COPY OF THE COVERING LETTER FOR PAYMENT OF RS.13,47,918/- DATED 15.12.1999 P8- -DO- -DO- DATED 28.12.2001 P9- -DO- -DO- DATED 14.8.2002 P10- -DO- -DO- DATED 14.9.2002 P11- TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 11.1.2007 P12- STATEMENT SHOWING MONTH WISE BREAKUP OF ADMITTED TAX AND THE CORRESPONDING REVENUE RECOVERY NOTICES. R1(a)- TRUE COPY OF THE STATEMENT R1(b), (c) & (d)- TRUE COPY OF THE REPRESENTATIONS /true copy/ PA To Judge ANTONY DOMINIC, J ........................................ W.P.(C).2752/2007 .............................................. Dated this the 20th day of September, 2012 JUDGMENT Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondents. 2. Ext.P1 is an order of ex parte assessment passed against the petitioner for the assessment year 1999-00 under the KGST Act (in short 'the Act'). Against that order, petitioner filed Ext.P4 appeal before the 2nd respondent. Section 34(1) of the Act requires the petitioner to produce proof of payment of admitted tax. 3. Case of the petitioner is that during the assessment year itself, for non payment of admitted tax along with returns, revenue recovery was initiated and that he approached this Court by filing W.P.(C).39223/2001. It is stated that based on the orders passed by this Court, petitioner paid the dues to the 3rd respondent in instalments and that the entire admitted tax has been thus paid. It is also W.P.(C).2752/07 2 stated that on an application made by it, Exts.P5 and P6 certificates were issued by the 3rd respondent. However, on verification, petitioner found that the remittances made by Exts.P7 to P10 were omitted in Exts.P5 and P6. Petitioner there upon made a request to the 3rd respondent to correct the certificates and that request was pending consideration. At that stage, petitioner received Ext.P11 notice from the appellate authority calling upon the petitioner to produce proof of payment of admitted tax and informing that in the event of failure, the appeal will be rejected for non compliance of Section 34(1) of the Act. It was at that stage the writ petition was filed contending that the petitioner having paid the entire admitted amount, non compliance of Section 34(1) has occurred in the aforesaid circumstances and that therefore the appeal is not liable to be rejected. This plea of the petitioner has been reiterated before this Court also. 4. However from the statements filed by the respondents, their case is that the contentions raised by the petitioner are factually erroneous. According to the respondents, the payment of Rs.13,47,918/- made by the petitioner by cheque W.P.(C).2752/07 3 dated 15.12.1999, which was forwarded under cover of Ext.P7 letter, was not realised in as much as the cheque was dishonoured. In addition to this, they also say that the interest due is still remaining unpaid. As per the counter affidavit filed by respondents 1 and 2, further amounts are also due towards tax and surcharge. 5. As already seen, petitioner's case is that the entire amounts have been paid and they reiterated that the cheque was also not dishonoured. However, having regard to the long lapse of time and also the income tax raid that has taken place in the meanwhile, learned counsel submits that it is difficult for the petitioner to produce documents either from the Bank or elsewhere. In spite of it, learned counsel offers to produce certificates from their auditor that the entire admitted tax due for the assessment year 1999-00 including interest has been paid. In my view, in the peculiar facts pointed out by the petitioner, for the limited purpose of entertaining the appeal and not for anything else, such certificates could be acted upon and the appeal should be entertained on that basis. W.P.(C).2752/07 4 6. Therefore, I dispose of this writ petition directing that it will be open to the petitioner to produce certificates issued by their Chartered Accountant to the effect that the entire admitted tax and surcharge and interest, if any, for the year 1999-00 have already been paid. If necessary, it will also be open to the appellate authority to call for the book of accounts to verify the correctness of the certificates. On production of the certificates and book of accounts, if any, as above, if the appellate authority is satisfied by the payments claimed to have been made, the appellate authority will entertain Ext.P4 appeal and pass orders thereon, on merits. It is made clear that the direction aforesaid, is only for the limited purpose of entertaining the appeal and for no other purposes whatsoever. Sd/- ANTONY DOMINIC, JUDGE mrcs /true copy/ PA To Judge "