Kerala HC Orders GST Dept to Return Title Deed or Loss Certificate After Finding Proof of Submission

Bash-P-International Vs State Tax Officer (Kerala High Court)

The Kerala High Court directed the GST Department to trace and return an original title deed furnished by the petitioner as security, and ordered issuance of a certificate if the document is found to be irretrievably lost. The petitioner, a partnership firm registered under the Kerala Value Added Tax Act, 2003, had furnished the original title deed as security pursuant to a conditional stay granted by the First Appellate Authority. The stay required payment of 25% of the disputed amount and furnishing security for the balance. The petitioner complied by remitting the required amount and executing bonds, submitting the original title deed along with a covering letter acknowledged by the assessing authority.

The appeal was ultimately allowed in favour of the petitioner, and the Department’s challenge before the Tribunal was dismissed, rendering the appellate order final. Thereafter, the petitioner repeatedly sought return of the original title deed. In response, the Department stated that upon verification of records, the original title deed and bond could not be traced.

Before the Court, the Department denied receipt of the original title deed, relying on the inward register and an endorsement suggesting only a bond was to be kept in safe custody. The Court examined the record and found merit in the petitioner’s claim. It noted that the bond executed by the petitioner expressly required deposit of the original title deed, and that the covering letter acknowledging submission of the deed bore an official endorsement. The Court verified the original covering letter and found it consistent with the Department’s own copy, confirming submission. The Court rejected the Department’s denial, holding that the documents established that the original title deed had indeed been furnished. It further observed that the Department’s reply admitting inability to trace the deed did not deny receipt.

Concluding that it was the Department’s duty to locate and return the document, the Court directed the competent authority to make every effort to trace and release the original title deed within one month. In the event the document could not be traced, the Court ordered issuance of a certificate stating that the original title deed is irretrievably lost from the Department’s custody, to enable the petitioner to make alternate arrangements. The certification was directed to be issued within one month after the expiry of the tracing period.

FULL TEXT OF THE JUDGMENT/ORDER OF KERALA HIGH COURT

The petitioner is a partnership firm and was a registered dealer under the provisions of the Kerala Value Added Tax Act, 2003 on the rolls of the 1^st respondent. The grievance highlighted by the petitioner in this writ petition is regarding the failure on the part of the respondents in returning the original title deed furnished by the petitioner towards the security before the 1^st respondent, a copy of which is produced as Ext.P5.

2. Earlier, as per Ext.P1 order passed in an interlocutory application submitted by the petitioner in an appeal filed by it, the petitioner was granted stay of recovery proceedings, by the First Appellate Authority, on condition that, the petitioner shall remit 25% of the amount in dispute and shall furnish security for the balance amount in any form stipulated under the Kerala Value Added Tax Act and Rules, before the Assessing Authority, within two weeks from the date of receipt of a copy of the order. According to the petitioner, in compliance of the said condition, 25% of the amount was paid as per Exts.P2 and P3 security bonds were executed by submitting the original copy of Ext.P4 title deed of the property of the petitioner, as security. Ext.P5 is the covering letter referring to the submission of the original deed to the Commercial and Taxes Officer, II Circle, Kalamassery, which contains an endorsement of the officer concerned with the official seal of the said authority. The appeal was allowed in favour of the petitioner modifying the appellate order. Even though a challenge was raised against the said order, by the Department, before the Tribunal, the appeal was dismissed as per Ext.P7 order. Thus, the appellate order has become final.

3. Consequent to the order passed in appeal, the petitioner sought the return of the original title deed furnished by the petitioner as security. The communications issued by the petitioner in this regard are Exts.P8, P9, P10 and P11. However, in response to the aforesaid communications, Ext.P12 was issued by the 1st respondent, pointing out that, after verification of the assessment records, the original title deed and Form 6 Bond mentioned in the application could not be traced out. Therefore, this writ petition is submitted in such circumstances seeking the following reliefs:

“(i) Issue a Writ of Mandamus or other appropriate writ, order or direction directing the 1^st Respondent to return Exhibit-P4 original Title Deed submitted by the Petitioner in order to fulfill the stay condition within a definite period as fixed by this Hon’able Court;

(ii) To dispense the filing of translation of the vernacular document; and

(iii) Pass such other orders as the Hon’ble Court deems justified in the facts and circumstances of the case.”

4. A counter affidavit was filed by the 1st respondent wherein, they have denied the receipt of the of the original title deed. Such denial was raised, mainly on the ground that, Ext.R1(b), which is the inward register, does not contain the entry regarding the receipt of the of the original title deed. Besides, it was also averred that, Ext.R1(a), which is the original copy of Ext.P5 received by the Assessing Authority, contains an endorsement to the effect that, “Please keep the bond under safe custody”. Thus, it was contended that the reference is only with respect to the bond and not with respect to the original title deed. Based on the above, it was contended that, the Assessing Authority never received the original title deed of the petitioner.

5. I have heard Sri.P.S. Soman, learned Counsel for the petitioner and Sri.Reshmitha R. Chandran, learned Government Pleader for the respondents.

6. The only question that arises is whether the relief sought by the petitioner to return the original title deed can be entertained. When the petitioner asserts that the petitioner had already submitted the original title deed to the Assessing Authority, the contention of the respondents is that no such document was submitted before them. However, on going through the documents available before this Court, I find merits in the submission made by the learned Counsel for the petitioner. This is particularly because, in Ext.P3 bond executed by the petitioner in compliance of Ext.P1 order of stay, it is specifically mentioned that, the original title deed in respect of the scheduled property is to be deposited. According to the petitioner, Ext.P5 is the office copy of the covering letter, along with which, the original title deed was produced. It contains an endorsement of the officer concerned evidencing the acknowledgment of the said communication. The learned Counsel for the petitioner made available before this Court the original of Ext.P5 and this Court verified the same and found to be correct. Ext.R(1)(a) is the copy of the original communication of Ext.P5 and this would indicate that Ext.P5 was indeed submitted before the authorities concerned. The contents of Ext.P5 specifically refer to the submission of the original title deed and the copy of the communication produced as Ext.P5 contains an acknowledgment of the officer concerned. As far as the endorsement contained in Ext.R1(a) is concerned, merely because of the endorsement contained therein, I am not inclined to accept the said contention of the respondents, in the light of the acknowledgment contained in Ext.P5 and the reference regarding the requirement of production of the original title deed in Ext.P3. Therefore, I am of the view that, the documents available before this Court would lead to a definite conclusion that the petitioner had furnished the original title deed before the authority concerned. Therefore, it is the duty of the respondents to trace out the said file to release the same. In this regard it is also to be noted that, in Ext.P12 communication, the reply given by the officer concerned is that, they are unable to trace out the original title deed and the bond furnished by the petitioner and thus, it also does not contain any denial of the fact that the original title deed was never submitted before the authorities concerned.

In such circumstances, after considering all the relevant aspects, I am of the view that, this writ petition can be disposed of with the following directions:

a) The 1^st respondent or the competent officer in this regard shall make every endeavor to trace out the original title deed, a copy of which is produced as Ext.P4 in this writ petition, and to release the same to the petitioner within a period of one month.

b) In case of failure on the part of the respondents in tracing out the said document, a certificate shall be issued to the petitioner stating that the said original title deed is irretrievably lost from the custody of the Department, so as to enable the petitioner to make alternate arrangements for its title deed. Such certification shall be done, within a period of one month after the period stipulated by this Court for tracing out the document.