IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 1739 of 2008(F)
1. G.K. SHIBU,
... Petitioner
Vs
1. THE COMMERCIAL TAX OFFICER,
... Respondent
For Petitioner :SRI.PREMJIT NAGENDRAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :19/02/2008
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NO. 1739 OF 2008 F
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Dated this the 19th day of February, 2008
J U D G M E N T
The prayer sought for in this writ petition is to direct the
respondent to issue delivery notes to the petitioner forthwith
after collecting advance tax.
2. Petitioner submits that he is a dealer who has obtained
registration in July,2007 and Ext.P1 is the certificate of
registration. According to him, he has been doing business in
plywood and glasses. Exts.P2 to P14 are the chelan receipts for
payment of advance tax during the period from August, 2007.
Petitioner also submits that he has remitted substantial amounts
towards tax at the checkposts. It is submitted by the petitioner
that in compliance with the circular issued by the Commissioner
for Commercial Taxes, though he has been carrying on business
paying tax in advance, respondent is now refusing to issue
delivery notes even on payment of advance tax. Ext.P15 is a
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request made by the petitioner highlighting his grievances, but
then, even that representation was not responded. It is in this
background this writ petition has been filed.
3. A statement has been filed on behalf of the
respondent. The fact that the petitioner is a registered dealer and
that he has been carrying on business in plywood and glasses is
not seen disputed in the statement. However, it is stated that
while filing returns, a statement incorporating the details
contained in the purchase bill is a mandatory requirement under
Rule 22(3) of the KVAT Rules. According to the respondent, the
petitioner filed purchase statement, but the details which are
required are not incorporated therein, as a result of which, the
persons mentioned therein are unidentifiable. It is also stated
that C forms furnished by the petitioner were bogus and the
respondent has, as an example, cited the case of
M/s.M.S.K.Enterprises.
4. A reading of the statement would thus show that it is
on account of the absence of details in the statement regarding
the purchase bills, that the respondent is refusing to issue
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delivery notes to the petitioner. According to them, they had
issued a notice to the petitioner on 4/9/2007 calling upon him to
produce the purchase bills for verification and that notice was not
responded nor has the petitioner made himself available before
the respondent.
5. Petitioner has filed a reply affidavit. Though the
allegations in the statement filed by the respondent are denied by
the petitioner, it is contended that the Commissioner of
Commercial Taxes has issued Ext.P16 circular making it
mandatory to furnish the address of the selling dealer. Petitioner
submits that the petitioner undertakes that all future bills will
bear the full name and address of the selling dealer. According to
the petitioner, the respondent ought to be directed to issue
delivery notes to him.
6. From the nature of the contentions raised by the
parties, the issue that arises is as to whether the petitioner has
furnished details of the selling dealers in the statements filed
along with the returns. The documents that are required to be
furnished and the information that a dealer has to supply to the
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assessing authority are those mentioned in Rule 22 of the KVAT
Rules, 2005. Rule 22(3) provides that along with the return, the
records mentioned therein shall also be submitted. Ten records
are indicated and most of them are statements to be filed by the
assessee.
7. Ext.P16 circular only reiterates the requirement of the
rules and in so far as this writ petition is concerned, Clause 7
being relevant reads as follows:
(vii) Assessing authorities should verify all the returns
filed by the plywood/veneer dealers. If the purchase
list is filed by such dealers without complete
identifiable name and address of the purchaser no
Delivery Notes to be issued to such dealer.
Plywood/veneer being an industrial product, assessing
authorities should take all steps to identify and to
register such unregistered dealers.
A comparison of Clause 7 extracted above with the specifications
contained in Rule 22(3) of the KVAT rules would show that the
Commissioner was only reiterating what is provided for in the
rules. Therefore, even prior to the issue of Ext.P16, it was the
obligation of dealers like the petitioner, to provide complete and
identifiable names and address of the purchasers.
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8. In this case, admittedly such details were not provided
in the return or the documents attached thereto and the
petitioner only offers that he shall comply with this requirement
for his future sales. Since on the materials, I conclude that the
requirement of furnishing identifiable names and addresses of the
purchaser is a requirement of Rule 22(3) of the KVAT Rules, I am
satisfied that the petitioner has failed in that respect. If there is
such a failure on his side, petitioner cannot demand that the
respondent should be directed to issue delivery notes at this
stage.
Writ petition is only to be dismissed and I do so.
ANTONY DOMINIC,JUDGE.
Rp