Indian Emporium vs The Intelligence Officer on 23 March, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA.No. 592 of 2009()


1. INDIAN EMPORIUM, PATTANAKKAD, CHERTHALA,
                      ...  Petitioner

                        Vs



1. THE INTELLIGENCE OFFICER,
                       ...       Respondent

2. THE COMMERCIAL TAX OFFICER,

3. THE COMMISSIONER OF COMMERCIAL TAXES,

                For Petitioner  :SRI.S.ANIL KUMAR (TRIVANDRUM)

                For Respondent  : No Appearance

The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice K.SURENDRA MOHAN

 Dated :23/03/2009

 O R D E R
                    C.N.RAMACHANDRAN NAIR &
                         K.SURENDRA MOHAN, JJ.
               ....................................................................
                         Writ Appeal No.592 of 2009
               ....................................................................
                Dated this the 23rd day of March, 2009.

                                      JUDGMENT

Ramachandran Nair, J.

The appeal is filed against judgment of the learned Single Judge

declining to entertain the writ petition on account of availability of

effective alternate remedy by way of appeal against impugned penalty

order. The main case of the appellant is that it is engaged in export and

therefore, the whole case of attempted evasion of tax is without any

basis. Appellant’s case is violation of natural justice in as much as they

were not given effective opportunity. We are of the view that even for

violation of natural justice, the appellate authority can grant relief as it

has all the powers of the original authority. Counsel for the appellant

produced the last assessment completed under the KGST Act which is

for the year 2001-2002. On going through the assessment, we find that

the appellant’s claim of total export is genuine because the only

turnover assessed for that year under the KGST Act is sale value of

import licence. Counsel submitted that appellate authority being a

2

departmental officer, will not grant stay against recovery and if the

huge amount of penalty is recovered during pendency of appeal,

appellant will be put to serious hardship. Considering all these

contentions, we dispose of the Writ Appeal granting stay against

recovery proceedings for four months on condition that appellant will

remit rupees four lakhs within three weeks from now and file appeal

before the statutory authority. If Rs.4 lakhs is paid and appeal filed,

then recovery will remain stayed for four months from today and in

between, appellate authority will call for records and dispose of the

appeal on merits after hearing the appellant.

C.N.RAMACHANDRAN NAIR
Judge

K.SURENDRA MOHAN
Judge
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