IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 32990 of 2009(P)
1. E.FAIZAL, (PROPRIETOR)
... Petitioner
Vs
1. THE INTELLIGENCE OFFICER
... Respondent
2. THE STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.V.P.SUKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :18/11/2009
O R D E R
C.K.ABDUL REHIM, J.
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W.P.(C) No. 32990 OF 2009
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Dated this the 18th day of November, 2009
JUDGMENT
1. Writ petition is filed challenging Ext.P8 order
issued under Section 44(8) & (10) of the Kerala Value
Added Tax Act 2003 (KVAT Act) through which penalty
to the tune of Rs.12,14,185/- was imposed on the
petitioner. The penalty is imposed based on the
allegation that during inspection it is revealed that the
petitioner had stored goods in a premise which is not a
declared godown.
2. Without going into merits of the matter, it is
noticed that, from Ext.P8 order statutory appeal is
provided under the KVAT Act. Therefore, I am of the
opinion that the matter need not be entertained and
adjudicated herein since the petitioner has not resorted
to such remedies.
W.P.(C) No. 32990 OF 2009
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3. Learned counsel for the petitioner contended
that the imposition of penalty is only based on the
provisions under Section 44(10) of the KVAT Act, which
says that “if on inspection it is found that goods are
stored in undeclared godown, such stock shall be
treated as stock out side the regular books of account of
the dealer”. It is pointed out that a Division Bench of
this Court in the judgment in Writ Appeal No.1300/2009
held as follows:-
“As already stated, even though penalty
under Section 44(8) read with Section 44(10)
is mandatory, by virtue of the above referred
discretionary powers conferred on the officer,
a dealer is given opportunity to state
emergency which led to his keeping the
goods in undeclared godown without prior
intimation and if he proves it and if such
goods were found accounted, then the same
should certainly be taken into account by the
Inspecting Officer while levying penalty. In
other words, by applying the fiction alone
under Section 44(10), the officer cannot levy
maximum penalty at half the value of the
goods under Section 44(8), if the dealer
proves the extreme circumstances that led to
his storage of goods in undeclared godown
and that the goods are accounted”.
Therefore it is contended that imposition of penalty in
W.P.(C) No. 32990 OF 2009
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this case was totally unwarranted.
4. However, I am of the opinion that non
consideration of the books of accounts, or the
contentions based on the above quoted judgment, are
all grounds which the petitioner is entitled to raise
before the appellate authority. It could not be presumed
that if any such grounds are raised, the appellate
authority will not consider the same on its merits.
Under the above circumstances, the writ petition is
dismissed with out prejudice to rights of the petitioner
to file statutory appeal against Ext.P8 before the
appropriate authority.
C.K.ABDUL REHIM,
JUDGE
SS