IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15706 of 2008(T)
1. A.J.JOSE, AGED 48 YEARS,
... Petitioner
Vs
1. THE COMMISSIONER OF COMMERCIAL TAXES,
... Respondent
2. DEPUTY COMMISSIONER OF COMMERCIAL
3. INTELLIGENCE OFFICER (IB)
For Petitioner :SRI.K.L.NARASIMHAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice K.M.JOSEPH
Dated :29/01/2009
O R D E R
K. M. JOSEPH, J.
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W.P.C. NO. 15706 OF 2008 T
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Dated this the 29th January, 2009
JUDGMENT
Petitioner challenges Exts.P2, P3 and P4. Ext.P2 is a
proceeding of the third respondent Intelligence Officer by which
the petitioner was visited with penalty in a sum of
Rs.52,10,532/= under Section 45A of the KGST Act. Petitioner
carried the matter in Revision before the second respondent
Deputy Commissioner who rejected the Revision Petition by
Ext.P3 order. In further Revision, the first respondent
Commissioner of Commercial Taxes found that the contentions
are without any basis and dismissed the Revision Petition.
2. Briefly put, the case of the petitioner is as follows:
Petitioner is an assessee under the KGST Act. He is
having his place of business at Panachamood, the border area of
the State. He has been purchasing rubber sheets and effecting
resale within the State. According to the petitioner, all the
consignments were supported by Form 25 Declaration, the
WPC.15706/08 T 2
rubber sheets being taxable at the point of last purchase in the
State. It is stated that the purchasers of the petitioner had given
Delivery Notes in respect of the purchases made by them.
Petitioner has produced Ext.P1 series as Form 25 Declarations
given by the various traders. The third respondent initiated an
enquiry. It is stated that the third respondent held that the
Registration Number of the goods vehicles were found to be
bogus, and that the traders who have made entries in their Books
of Accounts to show that they have received the goods, have
made the entries without actually receiving the same. There was
no actual purchase and the dealers connived with the petitioner
in issuing Form No.25 declaration. It is also found that for the
year 2002 – 2003 there was suppression of taxable turnover by
showing as non-taxable turnover in the monthly and annual
returns filed. The maximum penalty was imposed.
3. I heard Shri N. Krishna Prasad, learned counsel for the
petitioner and the learned Government Pleader. Learned
counsel for the petitioner would contend that the penalty orders
WPC.15706/08 T 3
are unsustainable. According to him, there is violation of the
principles of natural justice. The petitioner ought to have been
permitted to cross-examine the other dealers, it is submitted. It
is also contended that the petitioner should have been permitted
to verify the Delivery Notes with the check post Declarations so
that the allegation that the goods were not transported in lorries
and whether the vehicle numbers corresponded to
Scooters/Motor Cycles/Cars was correct or not. Per contra,
learned Government Pleader would point out that this is a case
where the vehicle numbers entered in the Register maintained in
the check post would categorically show that the claim of the
petitioner can only be false. The vehicle numbers are alleged to
be lorries used for transporting huge quantities of rubber. When
the vehicle numbers were actually cross-checked with the Motor
Vehicles Department, it was found that they were found to be
Hero Honda Motor Cycle, Suzuki Motor Cycle, Maruthi Zen
Car, Bajaj Sunny Motor Cycle, Hindustan Ambassador Car and
Bajaj Chetak Scooter. That is to say, there was no actual
WPC.15706/08 T 4
transport of rubber sheets and those dealers are purported to
issue Form 25 Declarations to the petitioner and the Authorities
have found that it revealed that the entries were made to show
that they have received the goods without actually receiving the
same. This is a case where the correctness or the falsity of the
petitioner’s case can be clinchingly decided on the basis of the
three materials, ie. the Delivery Notes, the Check Post
Declarations and the Vehicle Numbers as contained in these two
documents, and the result of the cross-checking of the type of
the vehicles with the Motor Vehicles Department on the basis of
these two incontrovertible material. It is clear that the
concurrent findings entered by the three statutory authorities are
borne out by the records to the effect that there was no transport
of the goods to the alleged purchasers from the petitioner who
had also proceeded to provide Form 25 Declarations to make it
appear that they had effected the alleged purchases within the
State. Learned counsel for the petitioner was also permitted to
go through the records. The finding of the Authorities that the
WPC.15706/08 T 5
petitioner had sought to make it appear that there were purchases
from him within the State, making them last purchases and the
Form 25 Declarations were also purported to be produced in this
regard, when in point of truth, there was absolutely no transfer
of goods to the alleged purchasers, is supported by the
incontrovertible nature of the documents which are also made
available to this Court. In the light of this, I do not see any
reason why any aid should be extended to the petitioner and the
Writ Petition is dismissed.
Sd/=
K. M. JOSEPH, JUDGE
kbk.
// True Copy //
PS to Judge