Case Law Details
Little Flower Traders Vs State Tax Officer (Kerala High Court)
Kerala High Court held that since assessment proceedings u/s. 25(1) of the Kerala Value Added Tax Act, 2003 [KVAT] have been remanded, writ petition challenging penalty proceedings thereof is disposed with direction to department to pass appropriate orders on application.
Facts- Petitioner is a partnership firm conducting a business under the name ‘Little Flower Traders’, at Vadakkan cherry, Palakkad. For the assessment year 2013-14, an assessment order was issued pursuant to a notice u/s. 25(1) of the Kerala Value Added Tax Act, 2003 on 22.02.2016. The said order was challenged before the appellate authority. By order dated 25.11.2024, the appeal was allowed and was remanded back for fresh consideration on noticing that the order impugned therein was passed ex-parte. The petitioner was even directed in the said order, to produce all documents relating to the assessment year 2013-14 within two months from the date of receipt of the order failing which it was also directed to reinstate the original order itself.
In the meantime, the penalty proceedings on the basis of which the assessment u/s. 25(1) of KVAT Act was initiated has been challenged before this Court.
Conclusion- Held that application has been filed before the first respondent requesting for providing copies of documents and for grant of an opportunity for cross-examination. Since the assessment proceedings have been remanded back to the first respondent to reconsider the matter afresh, I am of the view that this writ petition can be disposed of by directing the first respondent to pass appropriate orders on application.
Accordingly this writ petition is disposed of by directing the first respondent to consider and pass orders on application, as expeditiously as possible, at any rate, within a period of seven days from the date of receipt of a copy of this judgment.
FULL TEXT OF THE JUDGMENT/ORDER OF KERALA HIGH COURT
petitioner seeks for the following reliefs :
i. To call the records from 1strespondent, leading to issuance of Ext.P7 notice for 2013-14 and issue a Writ in the nature of mandamus or any other appropriate writ or order directing, 1st respondent to provide the Petitioner with a facility for cross examination of M/s.Vishal Calcium Oxcide Pvt. Ltd; Kanjikode, Palakkad and Sri.Sreejith K.K., before completing the proceedings;
ii. To issue a Writ in the nature of mandamus or any other appropriate writ or order directing, 1strespondent to consider Ext.P8 request of the Petitioner, before completing assessment for 2013-14 under the KVAT Act;
iii. To issue a Writ in the nature of mandamus or any other appropriate writ or order directing, 1strespondent to provide the Petitioner with copies of documents relied in Ext.P5 assessment order;
2. Petitioner is a partnership firm conducting a business under the name ‘Little Flower Traders’, at Vadakkan cherry, Palakkad. For the assessment year 2013-14, an assessment order was issued pursuant to a notice under Section 25(1) of the Kerala Value Added Tax Act, 2003 on 22.02.2016. The said order was challenged before the appellate authority. By Ext.P6 order dated 25.11.2024, the appeal was allowed and was remanded back for fresh consideration on noticing that the order impugned therein was passed ex-parte. The petitioner was even directed in the said order, to produce all documents relating to the assessment year 2013-14 within two months from the date of receipt of the order failing which it was also directed to reinstate the original order itself.
3. In the meantime, the penalty proceedings on the basis of which the assessment under Section 25(1) of KVAT Act was initiated has been challenged before this Court in OTR No.3/2025. Since the first respondent is, according to the petitioner, proceeding with the assessment after the order of remand, without granting an opportunity to cross-examine as well as without furnishing the required documents, petitioner has approached this Court.
4. I have heard Sri.Tomson T.Emmanuel, the learned counsel for the petitioner as well as Smt.Jasmin M.M., the learned Government Pleader.
5. In the order of the appellate authority produced as Ext.P6, there is no reference that petitioner was not in possession of any of the documents. The relevant portion of Ext.P6 is extracted as below :-
When the appeal was posted for hearing, Advocate Tomson T.Emmanuel appeared on behalf of the appellant on 20.11.2024. The appellant contended that the impugned order is ex-parte. In addition to the grounds of appeal, the counsel contended that the respondent has not conducted an independent enquiry with regard to the suppression detected by the Intelligence Officer. The appellant relied upon the judgment of Velimparambil Hardwares v. State of Kerala [1994 STC 98]. The appellant further contended that the purchase suppression detected on KVATIS scrutiny were already subject to suppression detected by the Intelligence Officer and hence it amounts to duplication. The appellant submitted that they had uploaded the quantity wise stock statement in the KVATIS and hence the said assessment is not sustainable. The appellant challenged the equal addition of Rs.5,20,82,598.00 for probable omission and suppression as it was made without any reason. The counsel submitted that the respondent failed to follow the guidelines prescribed under Section 25AA of the Act, while completing the assessment. Also, contended that they have not received a fair opportunity to prove their claim before the assessing authority.
6. Though petitioner contended that it is not in possession of any of the documents, on a perusal of Ext.P5 order of the assessing authority which is set aside in appeal, it is noticed that certain transactions have been referred to therein, which were available in the KVATIS. However, those are only entries made by the respective suppliers in the KVATIS portal and petitioner is already aware about those entries. However, it is noticed from Ext.P2 that during the course of investigation, certain documents were recovered from the business premises of M/s.Vishal Calcium Oxide Pvt. Ltd. The transactions revealed from those documents are allegedly used to impose penalty on the petitioner and to initiate the assessment proceedings. According to the petitioner, copies of those records are necessary to defend this case.
7. The learned Government Pleader, upon instructions submitted that petitioner was earlier itself asked to appear before the first respondent to collect copies of documents required by them. Despite such notice, petitioner did not appear and it was submitted that thereafter summons was issued. It is also submitted that the present attempt of the petitioner is to delay the whole proceedings, especially when the officer had himself volunteered to give copies of the documents.
8. Be that as it may, Ext.P8 application has been filed before the first respondent requesting for providing copies of documents and for grant of an opportunity for cross-examination. Since the assessment proceedings have been remanded back to the first respondent to reconsider the matter afresh, I am of the view that this writ petition can be disposed of by directing the first respondent to pass appropriate orders on Ext.P8 application.
Accordingly this writ petition is disposed of by directing the first respondent to consider and pass orders on Ext.P8 application, as expeditiously as possible, at any rate, within a period of seven days from the date of receipt of a copy of this judgment.
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