IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA No. 2220 of 2006(B)
1. M/S.YOGESH TRADING CO.,
... Petitioner
Vs
1. INTELLIGENCE OFFICER (IB),
... Respondent
2. DEPUTY COMMISSIONER OF COMMERCIAL
3. COMMISSIONER OF COMMERCIAL TAXES,
4. ASST. COMMISSIONER (ASSESSMENT),
5. ASST. COMMISSIONER OF COMMERCIAL TAXES,
6. TAHSILDAR, TALUK OFFICE,
For Petitioner :SRI.ARIKKAT VIJAYAN MENON
For Respondent :GOVERNMENT PLEADER
The Hon'ble the Acting Chief Justice MR.K.S.RADHAKRISHNAN
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :23/03/2007
O R D E R
K.S.RADHAKRISHNAN, Ag.C.J. &
M.N.KRISHNAN, J.
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W.A.No.2220 of 2006
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Dated, this the 23rd day of March, 2007
JUDGMENT
Radhakrishnan, Ag.C.J.
Writ petition was preferred by the appellant seeking a writ
of certiorari to quash Exts.P17 to P21 orders passed by the first
respondent, Ext.P24 order passed by the second respondent and
Ext.P25 order passed by the third respondent and also for
consequential reliefs.
2. We heard learned Senior counsel Sri.Aryama Sundaram
for the appellant and also Sri.V.V.Asokan, learned Special
Government Pleader (Taxes), at some length.
3. Learned counsel for the appellant submitted that all the
authorities have not properly examined the scope of Section 45A
of the Kerala General Sales Tax Act in imposing penalty. Counsel
further referred to various decisions of this Court in support of his
contention and submitted that the initial burden is on the
department to discharge. Counsel also submitted that the
Intelligence Officer has passed Exts.P17 to P21 on mere
W.A.No.2220/2006 2
conjunctures and surmises on irrelevant materials. Counsel
further submitted that there is nothing to show that the assessee
had transported rubber from Kerala to Karike in the State of
Karnataka. In the absence of any material, counsel submitted
that there is no justification in proceeding against the assessee
and imposing penalty under Section 45A of the KGST Act.
Counsel further submitted that the second respondent first
revisional authority has committed an error in placing reliance on
various materials which do not find a place in the show cause
notice.
4. Learned Special Government Pleader (Taxes)
Mr.V.V.Asokan submitted that the department has already
examined the matter and found on materials that the rubber was
transported by the assessee to Karnataka and sold those items
from the branch office at Karike. The learned Special
Government Pleader also submitted though in Ext.P11 letter
dated 28th July, 2004 the assessee has stated that it has
purchased rubber from various dealers from Karnataka, the
same were not disclosed, though the petitioner has expressed its
willingness to furnish those details. As the assessee has
W.A.No.2220/2006 3
volunteered to furnish the names of persons/dealers from whom
they had purchased rubber at Karike it is the duty of the assessee
to convince the Intelligence Officer that the rubber sold from
Karike were purchased from registered dealers. Unless and
until the Intelligence Officer has sufficient materials, no
proceedings could be initiated against the assessee. We are
also unhappy in the manner in which the second respondent first
revisional authority has passed his orders. The revisional
authority is not expected to place reliance on materials which
were never put to the assessee. Considering the entire facts
and circumstances of the case, we feel it will be appropriate that
the matter be considered by the Intelligence Officer afresh after
affording an opportunity of hearing to the assessee and also to
produce all relevant materials before the Intelligence Officer.
The materials on which the assessing authority proposes to rely
on may also be made available to the assessee. In order to
enable the Intelligence Officer to pass fresh orders we set aside
Exts.P17 to P21 as well as the revisional orders Exts.P24 and
P25. We make it clear that we have not expressed any final
opinion on the merits of the case either way. Since we are
W.A.No.2220/2006 4
remitting the matter back to the Intelligence Officer, we leave
open the various contentions raised by counsel on either side in
respect of their respective cases.
Writ appeal is disposed of setting aside the judgment of the
learned Single Judge as well as the orders impugned.
K.S.RADHAKRISHNAN,
Ag.CHIEF JUSTICE.
M.N.KRISHNAN,
JUDGE.
vns