IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 20227 of 2010(C)
1. N.A.VARGHESE, S/O.GEORGE,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED
... Respondent
2. THE INTELLIGENT OFFICER,
3. THE COMMERCIAL TAX OFFICER,
4. AJMAL WOOD INDUSTRIES,
5. M.K.JABBAR HAJI, AGE AND FATHER'S
6. THE INSPECTING ASSISTANT COMMISSIONER,
For Petitioner :SRI.ABRAHAM MATHEW (VETTOOR)
For Respondent : No Appearance
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :29/06/2010
O R D E R
P.R. RAMACHANDRA MENON, J.
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W.P.(C) No. 20227 OF 2010
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Dated this the 29th June, 2010
J U D G M E N T
The petitioner has approached this Court with the following
prayers:
“i) issue a writ of mandamus or other
appropriate writ or direction quashing Exts. P7,
P8 and P9 notices issued under Section 47(2)
of the Kerala Value Added Tax 2003.
ii) issue a writ of mandamus or other
appropriate writ orders direction commanding
the 2nd respondent to initiate the penalty
proceedings under Ext.P7 to P9 against the
respondents 4 and 5 or in the alternative to
defer the proceedings pursuant to them till the
disposal of the suit filed by the petitioner
iii) Declare that the petitioner is not liable to
account for answer to the unauthorised
transportation of excessive quantity of timber
than what has been covered by the delivery
note and accordingly hold that the respondents
4 and 5 are only liable to be proceeded against
for the same.
iv) To grant such other reliefs which the
petitioner may seek from time to time and this
W.P.(C) No. 20227 OF 2010
2
Hon’ble Court may deem fit to be granted in
the circumstances of the case.”
2. The petitioner is a dealer in timber at Anjukunnu in
Wayanad district, who purchased various lots of timber as
covered by Exts. P1 to P3 invoices . Subsequently, a portion of
the said timber was sold to the respondent Nos. 4 and 5 .
Allegedly making use of the absence of the petitioner in the
premises at Palakkad, excess quantity of the materials was
transported by the respondent Nos. 4 and 5. While so, the
vehicle and the goods were intercepted by the departmental
authorities near Palakkad issuing notice under Section 47(2) of
the KVAT Act, doubting evasion of tax and demanding security
deposit. The learned Counsel for the petitioner submits that the
petitioner being the consignor, notice was served upon the
petitioner, pursuant to which, the petitioner satisfied the security
deposit. Subsequently, the petitioner was constrained to
approach the Civil Court by filing O.S.No.218 of 2009 and I.A.
(Ext.P14) for injunction, before the Sub Court, Palakkad .
Pursuant to the order in the above I.A., an Advocate
Commissioner was appointed. The timber forming the subject
W.P.(C) No. 20227 OF 2010
3
matter of the Suit was located by the Advocate Commissioner on
the premises of the respondent Nos. 4 and 5, who are the
defendants in the O.S. It is contended by the defendants in Ext.
P16 written statement filed , (as stated in paragraph No.4 of
the written statement) that the timber were actually purchased
by them from the owners directly and the petitioner/plaintiff
was in no way connected with the transaction . It is stated that
the Civil Suit is still pending. The prayer of the petitioner is
that, pursuant to the satisfaction of the security deposit, the
departmental authorities are proceeding with adjudication
proceedings and if it is permitted to be finalised before
finalisation of the Civil Suit, huge liability is likely to be mulcted
upon the shoulders of the petitioner , which hence is sought to be
intercepted, seeking for a direction to the departmental
authorities to defer the adjudication exercise till the Civil Suit is
taken to its logical conclusion.
3. The learned Government Pleader appearing for the
respondents submits that, this is nothing but an instance of
collusion between the petitioner and respondent Nos. 4 and 5. It
W.P.(C) No. 20227 OF 2010
4
is stated that transportation of the materials was without any
valid documents as contemplated under Section 46(3) of the
KVAT Act, which hence was rightly intercepted by the concerned
respondents, issuing notice under Section 47(2) doubting
evasion of tax and demanding security deposit. Pursuant to
issuance of the notice, the petitioner admittedly satisfied the
security deposit and got the timber released.
4. Obviously, there is no case for the petitioner that, on
getting the timber released, the same was fraudulently removed
by the respondent Nos.4 and 5 to their premises without his
knowledge. On the other hand, after satisfying the security
deposit, the petitioner indirectly caused the same to be released
to the 4th and 5th respondents to be taken to their premises. So
also, there is no case for the petitioner that, even after coming
to know about the alleged fraudulent removal of the goods by
the respondents No.4 and 5, the petitioner has preferred any
criminal complaint before the Police or that he has approached
the court directly, if the police has not taken any action
pursuant to the said complaint.
W.P.(C) No. 20227 OF 2010
5
5. This being the position, the version put forth by the
petitioner that the goods have been removed without his
knowledge and involvement cannot be believed without a pinch
of salt. In any view of the matter, this Court does not propose to
go into the merits or demerits of the contentions raised in this
Writ Petition, but for holding that the prayer of the petitioner
seeking to issue a direction to the departmental authorities to
defer the adjudication proceedings till the Civil Suit between
the petitioner and the respondent Nos. 4 and 5 is finalised, does
not involve any merit or bonafides.
No interference is warranted and the Writ petition is
dismissed. It is made clear that the adjudication proceedings
shall be pursued and finalised untrammeled by any of the
observations made by this Court in this judgment.
P.R. RAMACHANDRA MENON,
JUDGE.
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