IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15984 of 2008(C)
1. M/S VARUN AGRO, VI/1036A, SHAN COMPLEX,
... Petitioner
Vs
1. THE COMMISSIONER OF COMMERCIAL TAX
... Respondent
2. THE DEPUTY COMMISSIONER, COMMERCIAL
3. THE INTELLIGENCE OFFICER, SQUAD NO.II,
4. THE ASSISTANT COMMISSIONER (ASSESSMENT),
For Petitioner :SRI.C.K.THANU PILLAI
For Respondent : No Appearance
The Hon'ble MR. Justice K.M.JOSEPH
Dated :18/06/2008
O R D E R
K. M. JOSEPH, J.
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W.P.C. NO. 15984 OF 2008 C
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Dated this the 18th June, 2008
JUDGMENT
Petitioner challenges Ext.P7. By Ext.P7, the
Commissioner of Commercial Taxes has set aside the order
passed by the Deputy Commissioner of Commercial Taxes and
remanded the matter to the Intelligence Officer, Squad No.II,
Ernakulam for de novo disposal after verifying the facts.
2. Briefly put, the case of the petitioner is as follows:
A notice was issued proposing penalty against the
petitioner to which though objections were filed, penalty was
imposed by the third respondent. It came to be set aside by the
second respondent. It is the said order which was set aside by
the Commissioner of Commercial Taxes and remanded.
Petitioner is a partnership firm carrying on business in hill
produces at Mattanchery. Certain records were seized on an
inspection on 8.6.1999 and after examination of the
Accounts of the petitioner, the third respondent alleged that
WPC. 15984/08 C 2
the petitioner sold pepper for Rs.1,48,72,360/= to M/s. Varun
Impex Ltd., another registered dealer housed in the same
premises. It is the case of the Department that this was not
accounted and thus penalty followed. According to petitioner,
no sale took place on that day and there was no sale of the goods
and there was no evasion. It is, in fact, the case of the petitioner
that due to non-arrival of goods, there was no sale. Bills were
prepared and cancelled, as the sale did not materialise on that
day and delivery could not be made due to non-arrival of the
goods, is the petitioner’s case. The first respondent
Commissioner found in his order that the Revisional Authority
has not verified various aspects while disposing of the Revision
Petition. In the course of the order, the Commissioner while
setting aside the order and remanding the matter for de novo
consideration after verifying the aforesaid facts, made certain
observations. It is, inter alia, found that the argument of the
petitioner that the assessment for the relevant period was
completed, has no significance, as the last bill used by the
WPC. 15984/08 C 3
petitioner is Bill No.401 dated 31.3.1999, which was not
produced before the assessing authority for verifying the Books
of Account. There is no attestation found by the assessing
authority and it is, therefore, clear that the petitioner
intentionally avoided production of the bills before the assessing
authority, it is stated. It is the case of the petitioner that it is not
correct. It is also stated that the original is seen detached from
the bill book itself and no inscription is found cancelled in the
duplicate copy. He has also made reference to certain other
observations.
3. Since the matter is being remitted back for de novo
consideration, I think that the matter should be considered
untrammelled by the observations contained in Ext.P7.
Accordingly, while sustaining Ext.P7, it is ordered that when the
assessing authority takes up the matter after remand for
verification of the various aspects which was ordered, the
assessing authority will take a decision in accordance with law,
WPC. 15984/08 C 4
untrammelled by the observations contained in Ext.P7. I leave
open the contentions of the petitioner.
The Writ Petition is disposed of as above.
Sd/=
K. M. JOSEPH, JUDGE
kbk.
// True Copy//
PS to Judge