IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 491 of 2009(H)
1. BEEPATH CASTINGS (P) LTD., KANJIKODE,
... Petitioner
Vs
1. ASSISTANT COMMISSIONER(KVAT),
... Respondent
2. ASSISTANT COMMISSIONER (KVAT AUDIT
3. DEPUTY COMMISSIONER (APPEALS),
For Petitioner :SRI.JOHN JOSEPH VETTIKAD
For Respondent : No Appearance
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :15/01/2009
O R D E R
THOTTATHIL B. RADHAKRISHNAN, J.
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W.P.(C).No.491 of 2009-H
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Dated this the 15th day of January, 2009.
JUDGMENT
The petitioner challenges Ext.P6 notice issued
calling for attendance and tendering evidence by
way of documents, books of accounts etc. for an
enquiry under the KVAT Act. That is issued in
connection with an audit assessment stated to
have been initiated on the strength of penalty
proceedings, that led to Ext.P1 appeal before the
competent authority. Against a conditional order
imposed while granting stay pending Ext.P1
appeal, the petitioner moved this Court and
obtained the judgment in WP(C).20968/2008. The
Division Bench refused to interfere with that
judgment and issued Ext.P4 enlarging the time to
pay the amounts and granting an opportunity to
the petitioner to file an application for early
posting of Ext.P1 appeal after depositing the
amounts covered by that judgment. Now, it is
WP(C)491/2009 -: 2 :-
shown that petitioner had filed an application
for early posting (Ext.P9) supported by Ext.P10
remittance. It is submitted by the learned
Government Pleader that Ext.P1 appeal is not
defective and is pending consideration.
The impugned Ext.P6 is not one that is liable to
be quashed on ground of any jurisdictional error
since it is issued on the premise of the penalty
proceedings, which is however pending
consideration in Ext.P1 appeal. The plea
pointedly projected on behalf of the petitioner
is that if the audit assessment proceedings are
concluded before a final decision is rendered on
the statutory appeal Ext.P1 against the penalty
order, that may prejudice the audit assessment
proceedings. The enquiry and steps taken for
audit assessment are only at their primitive
stage as can be seen from Ext.P6. Following the
direction under (iii) in Ext.P4 judgment, the
petitioner’s application for consideration of
Ext.P1 appeal needs to be adverted to and decided
WP(C)491/2009 -: 3 :-
upon by the authority before whom Ext.P1 appeal
is pending. That cannot be delayed. Pending that,
the petitioner would produce accounts and
documents pursuant to Ext.P6 notice. The
proceedings of hearing, production of records
etc. in connection with the enquiry and audit
could continue following Ext.P6. However, the
audit assessment proceedings shall not be
concluded by issuing final orders in such
proceedings before the issuance of final orders
on Ext.P1 appeal. The audit assessment
proceedings will be concluded only after
adverting to and considering any decision that
may be rendered on Ext.P1 appeal. It is so
directed. The petitioner will produce a copy of
this judgment before the authority before whom
Ext.P1 appeal is pending and also before the
authority who has issued Ext.P6 notice. The writ
petition ordered is accordingly.
THOTTATHIL B. RADHAKRISHNAN,
JUDGE.
Sha/160109