High Court Kerala High Court

Jose Prakash.K.K. vs The Intelligence Inspector on 28 September, 2010

Kerala High Court
Jose Prakash.K.K. vs The Intelligence Inspector on 28 September, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 29722 of 2010(M)


1. JOSE PRAKASH.K.K., AGED 53 YEARS,
                      ...  Petitioner

                        Vs



1. THE INTELLIGENCE INSPECTOR,
                       ...       Respondent

2. THE INTELLIGENCE OFFICER,

3. THE COMMISSIONER, COMMERCIAL TAXES,

4. STATE OF KERALA, REP.BY ITS

5. THE SALE TAX OFFICER,

                For Petitioner  :SRI.C.K.SREEJITH

                For Respondent  : No Appearance

The Hon'ble MR. Justice C.K.ABDUL REHIM

 Dated :28/09/2010

 O R D E R
                    C.K.ABDUL REHIM, J.

                 -------------------------------------------
                   W.P.(C).No.29722 of 2010
                 -------------------------------------------

         Dated this the 28th day of September, 2010


                         J U D G M E N T

———————-

Petitioner is approaching this court seeking

release of transport of Granite Slabs detained by the 1st

respondent under Ext.P3 series notices, issued under

Section 47(2) and 69(1) of the Kerala Value Added Tax Act,

2003 (KVAT Act). According to the petitioner, the Granite

Slabs were purchased from Bangalore for own use with

respect to construction of his residential building. But the

transport was intercepted at the Commercial Tax Ckeck Post

at Walayar, and Ext.P3 series notices were issued. In Ext.P3

the reason for detention mentioned is that the validity period

of the building permit and approved plan, which

accompanied the transport, had expired on 23.02.2009. It is

also noticed that on physical measurement there was

variation in the quantity to the tune of 543 Sq: Ft: in excess.

Further it is noticed that there is variation in the quality of

the Granite Slabs. On the basis of the above allegation it is

suspected that the transport was effected not for own use,

but for sale. The 1st respondent has also initiated

W.P.(C).29722/10-M -2-

proceedings under Section 69(1) to impose penalty on the

transporter with respect to difference in value pertaining to the

excess quantity found.

2. Learned counsel for the petitioner submitted that the

transport was accompanied by building permit issued from the

Muncipality along with approved plan and also a certificate

issued by the Village Officer, apart from invoice with respect to

purchase and Form No.16. The reason for detention that the

permit remained expired has no basis since the petitioner had

already applied for renewal, is the contention.

3. Government Pleader appearing for the respondents

submitted that the officer concerned has conducted physical

verification at the construction site and it was revealed that the

petitioner had already fixed flooring tiles in the first floor and

tiles are seen kept stocked for using in the ground floor. Hence

the Granite Slabs transported are not required for own use.

4. Whether the transport was genuine and as to whether

there was any attempt in evasion of payment of tax are matters

which need be decided on finalisation of adjudication

contemplated under Section 47. Therefore, I am not entering

into any findings regarding the allegations, which are in dispute.

I am of the opinion that the writ petition can be disposed of

directing release of the goods as well as the vehicle, on the

W.P.(C).29722/10-M -3-

petitioner furnishing adequate security.

5. In the result, the writ petition is disposed of directing

the 1st respondent to release the goods detained along with the

vehicle under Ext.P3 series notices, on the petitioner furnishing

Bank Guarantee for the amounts of security deposit and penalty

amount demanded under Ext.P3 series notices.

6. The competent authority will finalise the enquiry at

the earliest possible, after affording an opportunity of hearing to

the petitioner, at any rate within a period of two months from the

date of release of the goods.

C.K.ABDUL REHIM, JUDGE.

okb