IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 6517 of 2010(L)
1. JOBY KOSHY,
... Petitioner
Vs
1. INTELLIGENCE OFFICER, SQUAD NO.6,
... Respondent
2. COMMERCIAL TAX OFFICER,
For Petitioner :SRI.S.ANANTHAKRISHNAN
For Respondent : No Appearance
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :02/03/2010
O R D E R
P.R.Ramachandra Menon, J.
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W.P.(C) Nos.6517 & 6530 of 2010
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Dated this the 2nd day of March, 2010
JUDGMENT
The issues involved in both these cases are common
and hence they are heard and disposed of together.
2. The business premises of the petitioners were
subjected to search, pursuant to which Ext.P1 notice was issued
under Section 44(8) of the Kerala Value Added Tax Act read
with Section 44(10) asking the petitioners to show cause within
the specified time as to why the proposed penalty shall not be
imposed upon them.
2. The learned counsel for the petitioners submits
that the issuance of Ext.P1 notice by itself is wrong and illegal
and the circumstances contemplated under the above provisions,
particularly Section 44(8) and 44(10) are on entirely different
circumstances and that merely for the reason that the goods have
W.P.(C) Nos.6517 & 6530 of 2010
– 2 –
been found in an undeclared godown attracting Section 44(10),
the maximum penalty as shown in Section 44(8) cannot be
imposed upon them.
3. Heard the learned Government Pleader as well
who submitted that the idea and circumstance of the petitioners
challenging Ext.P1 proceedings are quote wrong and unfounded
as the circumstances dealt with under the provisions referred to
above are very much attracted to the case in hand.
4. After hearing both the sides, this Court finds that
there is absolutely no case for the petitioners that the goods were
traced from a place which was already declared by the
petitioners. Nowhere in the writ petition, the petitioner has
submitted that application of Section 44(10) is not attracted to
the case in hand because of the fact that the godown was a
declared one. That apart, the petitioner has been given
opportunity to explain the facts and figures as borne out by
Exts.P1 and P2.
W.P.(C) Nos.6517 & 6530 of 2010
– 3 –
5. The learned Government Pleader on instructions
submits that the proceedings have not been finalized so far. It is
also brought to the notice of this Court that the issue,
particularly with regard to the circumstances as contemplated
under Section 44(8) and Section 44(10) has very much been
dealt with and considered by a Division Bench of this Court as
per the decision reported in Sajeev v. Intelligence Officer (2009
(4) KLT 601) wherein it has been specifically held that the
circumstances as contemplated under Section 44(8) are very
much attracted to a case involving Section 44(10) as well.
6. However, the learned counsel for the petitioners
submits that merely for the reason that the goods have been
found in an undeclared godown, Section 44(10) by itself is not a
good reason to impose the maximum penalty under Section 44
(8). The quantum of penalty has to be adjudicated on the basis
of concrete facts and figures and also with reference to the
relevant books of accounts.
W.P.(C) Nos.6517 & 6530 of 2010
– 4 –
7. This Court finds that this is not a matter to be
interfered with at this stage and the petitioners have to be
relegated to pursue their remedy in response to Ext.P1/P2 notice
by raising appropriate objections, if any, and the matter shall be
finalized by the first respondent in accordance with law after
giving an opportunity of hearing to the petitioners, provided the
petitioners satisfy the requirements as stipulated in Ext.P1/P2
within one week. The proceedings as above shall be finalised as
expeditiously as possible, at any rate, within one month from
the date of receipt of a copy of this judgment.
Writ petitions are disposed of accordingly.
P.R.Ramachandra Menon,
Judge
vns