High Court Kerala High Court

Elankovan vs The Sales Tax Inspector on 24 November, 2010

Kerala High Court
Elankovan vs The Sales Tax Inspector on 24 November, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 35145 of 2010(P)


1. ELANKOVAN,
                      ...  Petitioner

                        Vs



1. THE SALES TAX INSPECTOR,
                       ...       Respondent

2. THE DEPUTY COMMISSIONER (ENQUIRY),

3. THE INSPECTING ASSISTANT COMMISSIONER OF

4. THE SECRETARY TO GOVT.,

                For Petitioner  :SRI.K.REGHU KOTTAPPURAM

                For Respondent  : No Appearance

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

 Dated :24/11/2010

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

                    --------------------------------
                  W.P.(C)No. 35145 of 2010
            -----------------------------------------------
            DATED: 24th day of November, 2010

                            JUDGMENT

Petitioner is a registered dealer under the provisions of the

Central Sales Tax Act (CST Act) and the Value Added Tax Act of

Tamil Nadu State (TNVAT Act). He was also a registered dealer

under the erstwhile Tamil Nadu General Sales Tax Act (TNGST

Act). The petitioner is approaching this Court aggrieved by

Ext.P5 notice and the proceedings initiated under Section 47(2) of

Kerala Value Added Tax Act, issued consequent to interception of

consignments of Soda Ash transported by the petitioner from

Kochi Port to Madurai in Tamil Nadu State. At the time of

detention of the consignments, the petitioner was compelled to

make payment of security deposit to the tune of Rs.58,589/-, as

evidenced from Ext.P7 receipt. The detailed goods along with the

vehicle was released on the basis of Ext.P6 proceedings of the 1st

respondent.

2. Contention of the petitioner is that the detention of the

transport and the proceedings initiated under Section 47 was

totally unwarranted and unreasonable. According to the

W.P.(C)No. 35145 of 2010
2

petitioner, the transport in question was made only on the basis

of transit pass issued and there was no transaction which attracts

any levy of tax under the provisions of the Kerala Value Added

Tax Act. Therefore, the petitioner is totally refuting the

allegations contended in the Ext.P5 notice.

3. Going by the scheme of the provisions contained in

Section 47 of the Kerala Value Added Tax Act, it is evident that

any detention effected under Section 47(2) of the Act need be

followed by an enquiry to be conducted by the competent

authority authorised under Sub Section (5) of Section 47. The

detaining officer should submit the connected records to the

authorised officer for the purpose of conducting necessary

enquiry in the manner prescribed. Sub Section (6) envisages an

enquiry to be conducted by the authorised officer, after affording

proper opportunity to the party concerned, and to take a decision

as to whether there was any attempt in evacuation of payment of

tax and as to whether the party is liable to be imposed with

penalty. The petitioner is always at liberty to raise all contentions

before the authorised officer including the contention that the

detention was not warranted and the transport in question does

not attract any levy under the Kerala Value Added Tax Act. It is

W.P.(C)No. 35145 of 2010
3

free for the petitioner to take contentions before that authority to

the effect that, the transport was accompanied by all documents

as required under the statute and circulars issued in this regard.

4. Under the above mentioned circumstances, I am of the

view that the petitioner can be relegated to the process of

enquiry to be conducted by the authorised officer as provided

under Section 47(5) and 6. It is made clear that the petitioner

will be at liberty to take all contentions available, including the

contention that the detention itself was totally without

jurisdiction.

5. Under the above circumstances, this writ petition is

disposed of directing the 2nd respondent, who is the competent

authority, to finalise the enquiry pursuant to Exts.P5 and P6, after

affording an opportunity of hearing to the petitioner at the

earliest possible at any rate within one month of receipt of a copy

of this judgment.

C.K.ABDUL REHIM, JUDGE.

dmb