Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE26H DAY OF FEBRUARY20147TH PHALGUNA, 1935 WP(C).No. 4947 of 2014 (P) -------------------------------------- PETITIONER(S): ---------------------- R.S MANOJ KUMAR, AGED43YEARS, S/O.SREEDHARAN NAIR, SREENANDANAM, MEENANGADI P O, WAYANAD DISTRICT. BY ADV. DR.GEORGE ABRAHAM RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695001.
2. THE DISTRICT COLLECTOR, WAYANAD-673121.
3. THE COMMERCIAL TAX OFFICER, VAT CIRCLE, KALPETTA, WAYANAD DISTRICT-673121.
4. THE DEPUTY COMMISSIONER (APPEAL), COMMERCIAL TAXES, KOZHIKODE-673001.
5. THE TAHSILDAR (REVENUE RECOVERY), AMBALAVAYAL, SULTAN BATHERY, WAYANAD DISTRICT-673592. BY SPECIAL GOVERNMENT PLEADER SRI.GEORGE MECHERIL (TAXES) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON2602-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PJ WP(C).No. 4947 of 2014 (P) ------------------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- P1:- TRUE COPY OF THE PETITIONER'S REGISTRATION CERTIFICATE UNDER THE KERALA VALUE ADDED TAX RULES P2:- TRUE COPY OF THE PAYMENTS MADE BY THE PEITITONER TO THE ICICI BANK IN THE ACCOUNT OF SHRI.M.S VARGHESEKUTTY P3:- TRUE COPY OF THE NEWS ITEM PUBLISHED IN MATHRUMBHUMI DAILY DTD226/2011 P4:- TRUE COPY OF THE NEWS ITEM PUBLISHED IN MATHRUBHUMI DAILY DTD254/2011 P5:- TRUE COPY OF THE NEWS ITEM PUBLISHED IN MANORAMA DAILYDTD510/2012 P6:- TRUE COPY OF THE JUDGMENT
IN WPC NO329822009 P8:- TRUE COPY OF THE PROCEEDINGS OF THE3D RESPONDENT DT D6/11/2009 P9:- TRUE COPY OF THE ORDER
PASSED BY THE DEPUTY COMMISSIONER (APPEALS) KOZHIKODE P10:- TRUE COPY OF THE JUDGMENT
IN CRMC176411 P11:- TRUE COPY OF THE PROCEEDINGS OF THE SALES-TAX OFFICER, KALPETTA DTD312/2009 P12:- TRUE COPY OF THE PROCEEDINGS OF THE3D RESPONDENT SALES TAX OFFICER DTD312/2009 P13:- TRUE COPY OF THE PROCEEDINGS OF THE3D RESPONDENT DTD258/2009 P14:- TRUE COPY OF THE RECTIFICATION PETITION FILED BY THE PETITIONER DTD3010/2013 P15:- TRUE COPY OF THE RECTIFICATION PETITION FILED BY THE PEITITONER DTD2910/2013 P16:- TRUE COPY OF THE REVENUE RECOVERY NOTICE B/1767/13 DTD110/2013 ISSUED BY THE COMMERCIAL TAX OFFICER, VAT CIRCLE, KALPETTA TO THE PETITIONER P17:- TRUE COPY OF THE REVENUE RECOVERY NOTICE B/1768/13 DTD110/2013 ISSUED TO THE PETITIONER BY THE SALES TAX OFFICER, AMBALAVAYAL PJ ....2/- ..2.. WP(C).No. 4947 of 2014 (P) ------------------------------------- P18:- TRUE COPY OF THE REVENUE RECOVERY NOTICE B/1765/13 DTD110/2013 ISSUED TO THE PETITIONER BY THE SALES TAX OFFICER,AMBALAVAYAL P19:- TRUE COPY OF THE REVENUE RECOVERY NOTICE B/17666/13 DTD110/2013 ISSUED TO THE PETITIONER BY THE SALES TAX OFFICER, AMBALAVAYAL P20:- TRUE COPY FO THE RESTORATION PETITION FILED BY THE PETITIONER BEFORE THE4H RESPONDENT P21:- TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE TAHSILDAR (REVENUE RECOVERY) AMBALAVALA P22:- TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE TAHSILDAR (REVENUE RECOVERY) AMBALAVAYAL P23:- TRUE COPY OF THE SHOW CAUSE NOTICE ISSUED BY THE DISTRICT COLLECTOR, WAYANAD, DTD2612/2013 P24:- TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE DISTRICT COLLECTOR DTD61/2014 P25:- TRUE COPY OF THE SHOW CAUSE NOTICE ISSUED BY THE DISTRICT COLLECTOR ON211/2014 P26:- TRUE COPY OF THE ORDER
ISSUED BY THE DISTRICT COLLECTOR, RECEIVED BY THE PETITIONER ON112/2014 RESPONDENT(S)' EXHIBITS --------------------------------------- NIL. / TRUE COPY / P.S. TO JUDGE PJ P.R. RAMACHANDRA MENON, J.
--------------------------------------- W.P.C. No.4947 OF2014--------------------------------------- Dated this the 26th day of February, 2014. JUDGMENT
The petitioner has approached this Court with the following prayers:- "i) to issue a Writ of Certiorari or any other appropriate writ, order or direction to quash Exhibit P26 order issued by the District Collector, Wayanad; ii) to issue a Writ of Mandamus or any other appropriate writ, order or direction directing respondents 3 and 4 to consider Exhibits P14 and P15 rectification petitions as well as Exhibit P20 restoration petition; iii) to issue a Writ of Mandamus or any other appropriate writ, order or direction directing respondents to desist from taking any action pursuant to Exhibits P16 to P19; iv) to grant such other and further reliefs to the petitioner as the Hon'ble Court may consider just and proper in the facts and circumstances of the case." 2. The assessment in respect of the assessment years from December, 2008 to March, 2009 and from April, 2009 to October, 2009 in the case of the petitioner, who is a dealer of live chickens, was finalised by the 3rd respondent, whereby a total sum of nearly Rs. 2.73 Crores was required to be satisfied.
3. According to the petitioner, the proceedings are per se wrong and illegal in all respects and there is apparent error on the face of the records, in so far as the tax liability sought to be W.P.C.No.4947 of 2014 2 fixed was something equal to or more than the turn over. Exhibit P8 is the order passed in the above circumstances, which was sought to be challenged by way of appeal, but the appeal came to be dismissed for default as per Ext.P9 order dated 07.02.2011.
4. In the course of further proceedings, the petitioner has filed Ext.P20 application for restoration of the appeal, which is pending consideration before the 4th respondent. In the meanwhile, the petitioner also approached the 3rd respondent, pointing out the glaring discrepancy with regard to the inflated figures, seeking to have the mistake rectified by filing Exts.P14 and P15 petitions under Section 66 of the KVAT Act, 2003, which are also pending. It is without any regard to the pendency of the above proceedings, that the petitioner has been caused to be arrested by issuing Ext.P26 order dated 11.02.2014 by the 2nd respondent, which made the petitioner to approach this Court by filing the writ petition.
5. Heard the learned Special Government Pleader for Taxes as well.
6. During the course of hearing, it is brought to the notice W.P.C.No.4947 of 2014 3 of this Court that the 3rd respondent has recently passed an order dated 19.02.2014 in respect of the month 'August', forming part of the assessment period for 2009-2010, whereby a sum of Rs.2.5 Crores has been deleted and the balance due is stated as only Rs.21,02,488/- (Rupees Twenty one lakhs two thousand four hundred and eighty eight only). A copy of the said order is made available for perusal of this Court by the learned counsel for the petitioner. It is stated that the applications preferred by the petitioner by way of Exts.P14 and P15 are for a larger period and if appropriate orders are passed in the said petitions, there is a chance to have the entire liability wiped out. It is also stated that the root cause for issuance of Ext.P26 has undergone substantial change and that the balance liability if any, could be worked out, subject to the fate of the appeal and the orders to be passed on Exts.P14 and P15. It is pointed out that sufficient amount to an extent of about Rs. 70 lakhs (Rupees Seventy lakhs only) is lying in the accounts in the Bank, which have already been frozen by the respondents and that the petitioner does not have any objection in appropriating the said amounts; to the requisite W.P.C.No.4947 of 2014 4 extent.
7. The learned Government Pleader submits that, the petition for rectification has been considered strictly in terms of the mandate under Section 66 of the KVAT Act and the eligible assessment benefit has already been given to the petitioner as per order dated 19.02.2014. But obviously the said proceeding is only in respect of the month of 'August' and since other periods are also involved in Exts.P14 and P15, the 3rd respondent is directed to consider and finalise the same by passing appropriate orders after giving an opportunity of hearing to the petitioner in accordance with law, at the earliest, at any rate, within 'one month' from the date of receipt of a copy of this judgment.
8. Similarly, the 4th respondent is directed to consider Ext.P20 application for restoration of the appeal and pass appropriate orders after hearing, at the earliest, at any rate, within 'two months' from the date of receipt of a copy of this judgment. It is made clear that the respondents are at liberty to appropriate the amount lying in the Bank accounts of the petitioner, which have been frozen, to the requisite extent. This W.P.C.No.4947 of 2014 5 of course will be subject to the orders to be passed by the 3rd and 4th respondents in the above proceedings. Implementation of Ext.P26 for causing the petitioner to be arrested shall be kept in abeyance for the time being. Writ petition is disposed of. P.R. RAMACHANDRA MENON, JUDGE sp