IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 28430 of 2010(C)
1. M/S.PRESTIGE ESTATES PROJECTS LTD.,
... Petitioner
Vs
1. COMMERCIAL TAX OFFICER (WC),
... Respondent
2. THE INTELLIGENCE OFFICER, SQUAD NO.IV,
3. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.HARISANKAR V. MENON
For Respondent : No Appearance
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :04/10/2010
O R D E R
C.K.ABDUL REHIM, J.
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W.P.(C).No.28430 of 2010
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Dated this the 4th day of October, 2010
J U D G M E N T
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Through Ext.P2 order, assessment was finalised
against the petitioner for the period from 1.4.2008 to
30.9.2008. It was before this court in WP(C).No. 549/2010.
In Ext.P3 judgment, this court set aside Ext.P2 and the 1st
respondent was directed to consider the matter and to pass
fresh orders, after affording an opportunity of hearing to the
petitioner, within a period of one month of receipt of a copy
of that judgment. Ext.P3 judgment was pronounced as early
as on 22.1.2010. Complaint of the petitioner is that the 1st
respondent had failed to issue modified orders in compliance
with the directions contained in Ext.P3 judgment, and at the
same time the 2nd respondent had issued Exts.P4 to P7
notices proposing imposition of penalty under Section 67(1)
of the Kerala Value Added Tax Act, 2003 (KVAT Act) with
respect to various periods from 2006-07 to 2009-10.
2. It is contended that, liability for imposing penalty
as proposed is dependent on the question regarding
W.P.(C).28430/10- -2-
exigibility of tax with respect to transactions undertaken by the
petitioner which are in the nature of contracts entrusted with
others. Contention of the petitioner is that turnover relating to
such works has to be assessed at the hands of the contractors
and petitioner is not liable for payment of tax on such turnover.
It is contended that the non-finalisation of assessment pursuant
to Ext.P3 judgment and the simultaneous proceedings initiated
for imposition of penalty, is highly arbitrary and unreasonable.
Therefore the petitioner seeks directions to restrain the 2nd
respondent from finalizing the proceeding pursuant to Ext.P4 to
P7 notices till consequent orders are passed by the 1st
respondent pursuant to Ext.P3 judgment.
3. Learned Government Pleader on the basis of
instructions submitted that after Ext.P3 judgment the petitioner
was invited for hearing on several occasions, but he has not co-
operated with the proceedings. It is stated that the penalty
notices issued by the 2nd respondent is an independent
proceedings and the petitioner is not entitled to seek deference
of that proceedings on the ground that modified order of
assessment has not been issued.
4. Having considered the facts and circumstances of the
W.P.(C).28430/10- -3-
case, I am of the opinion that the writ petition can be disposed of
directing the 1st respondent to finalise the matter pursuant to
Ext.P3 judgment, within a time frame.
5. The petitioner is directed to appear before the 1st
respondent within a period of two weeks from today and on such
appearance the 1st respondent shall conduct hearing of the
matter either on the same date itself or on any date to which the
hearing will be posted. The petitioner shall co-operate with
finalisation of the assessment by producing whatever supportive
documents in his possession. The 1st respondent will be at
liberty to proceed the matter on an ex-parte basis, if there is non
co-operation from the side of the petitioner. At any rate,
modified order pursuant to Ext.P3 shall be issued within a period
of 6 (six) weeks from today.
6. The 2nd respondent is directed to keep in abeyance
passing of final orders pursuant to Ext.P4 to P7 notices, till
orders are passed by the 1st respondent as directed above.
C.K.ABDUL REHIM, JUDGE.
okb