Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH THURSDAY, THE 27TH DAY OF JULY 2023 / 5TH SRAVANA, 1945 PETITIONER/S: SATHEESH SANKAR, AGED 50 YEARS, PROPRIETOR, SANKAR STUDIO, NEYYATTINKARA. BY ADVS. SRI.V.G.ARUN (K/795/2004) SRI.ANOOP BHASKAR RESPONDENT/S:
1 INTELLIGENCE OFFICER, SQUAD NO.VII, COMMERCIAL TAXES, NEYYATTINKARA, THIRUVANANTHAPURAM - 695 121. 2 INSPECTING ASSISTANT COMMISSIONER (IB), THE OFFICE OF THE DEPUTY COMMISSIONER (INT), DEPARTMENT OF COMMERCIAL TAXES, 1ST FLOOR, TAX TOWERS, KARAMANA, THIRUVANANTHAPURAM - 695 002. 3 STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF COMMERCIAL TAXES, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. BY ADV.RESHMITA RAMACHANDRAN(GP)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
1. Heard Mr. Neeraj, Learned Counsel for the petitioner and Ms. Reshmitha Ramachandran, Learned Government Pleader for the respondents.
2. The present writ petition under Article 226 of the Constitution
of India, 1950 has been filed impugning the order dated 06.08.2014 whereby penalty of Rs. 25,000/- (Rupees Twenty five thousand only) had been imposed on the petitioner by the Intelligent Officer, Squad No. VIII, Thiruvananthapuram at Neyyattinkara under Sections 68 and 69 of the Kerala Value Added Taxes Act and Rules made thereunder.
3. Earlier the order was passed on 31 st August, 2015 by the
Inspecting Assistant Commissioner (IB), Thiruvananthapuram imposing the penalty of Rs. 25,000/- (Rupees Twenty five thousand only) against the petitioner as the authority concerned found that the petitioner had committed the offence under Section 70 (a) of the KVAT Act 2003 by obstructing the inspection team. In the said
order it was specifically noted that the request for cross examination
of persons who had deposed against the petitioner at the stage of finalisation of order was made with malafide intentions for influencing the witnesses to record depositions in cross examination
in favour of the petitioner. Petitioner was given opportunity on 20th August, 2015. However the petitioner did not cross examine the witnesses who deposed against him. Even no request for cross examination of the witnesses was made by the petitioner. Therefore, the authority which passed the order has been of the view that once the petitioner had refused to avail the opportunity of cross examination of witnesses, he could not request later on for cross examination of the witnesses in as much as he had refused to cross examine the witnesses.
4. The aforesaid order was challenged by the petitioner by filing
W.P.(C) No.4368 of 2015. The ground on which the writ petition was allowed vide judgment and order dated 27.02.2015, was that the same authority had adjudicated the matter, which was the complainant and, therefore, the order was set aside. However, the petitioner was directed to appear before the Inspecting Commissioner, who was directed to pass a fresh order within a period of two months from the date of receipt of the order, after affording the petitioner an opportunity of hearing.
5. The petitioner feeling dissatisfied with the said judgment and
order dated 27th February, 2015 passed by a coordinate Bench of this
Court, filed W.A. No.822 of 2015. The said writ appeal came to be
dismissed by the learned Division Bench of this Court vide Judgment
and Order dated 09th June, 2015. The petitioner in pursuance to the direction issued by this Court, appeared before the Inspecting Assistant Commissioner (IB), Thiruvananthapuram, and after
considering the submission of the petitioner, the impugned order
was passed imposing the penalty of Rs.25,000/- (Twenty five thousand only) under Section 70 (a) of the KVAT Act, 2003.
6. Learned Counsel for the petitioner now contends that petitioner was denied the opportunity to cross examine the witnesses, who deposed against him.
7. It is required to be taken note of the fact that the petitioner
himself refused to cross examine the witnesses in earlier proceedings. Now, the petitioner cannot be allowed to challenge the impugned order on the ground of him not been given opportunity inasmuch as he himself did not avail the opportunity to cross examine the witnesses who deposed against him. Therefore, I do not find that the impugned order suffers from any illegality or perversity which requires interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India.
8. The writ petition being devoid of merits is hereby dismissed.
Interim order, if any, stands vacated. Sd/- DINESH KUMAR SINGH JUDGE Svn APPENDIX OF WP(C) 1426/2016 PETITIONER EXHIBITS Exhibit P-1 THE TRUE COPY OF THE NOTICE DT. 16.7.2014 ISSUED BY THE 1ST RESPONDENT Exhibit P-2 THE TRUE COPY OF THE ORDER DT. 05.8.2014 PASSED BY THE 1ST RESPONDENT Exhibit P-3 THE TRUE COPY OF THE NOTICE OF THE DEMAND DT. 06.8.2014 ISSUED BY THE 1ST RESPONDENT Exhibit P-4 THE TRUE COPY OF MEMORANDUM OF WRIT
PETITION IN WP(C) NO. 4368/2015 FILED BY THE PETITIONER BEFORE THIS HONOURABLE COURT WITHOUT EXHIBITS
Exhibit P-5 THE TRUE COPY OF THE JUDGMENT DT 27.02.2015 IN WP(C) NO. 4368/2015 PASSED BY THIS HONOURABLE COURT Exhibit P-6 THE TRUE COPY OF THE JUDGMENT DT. 09.6.2015 PASSED BY THIS HONOURABLE COURT IN WA NO. 822/2015 Exhibit P-7 THE TRUE COPY OF THE NOTICE DT. 30.7.2015 ISSUED BY THE 2ND RESPONDENT Exhibit P-8 THE TRUE COPY OF THE ORDER DT. 31.8.2015 PASSED BY THE 2ND RESPONDENT Exhibit P-9 THE TRUE COPY OF NOTICE OF DEMAND DT. 31.8.2015 ISSUED BY THE 2ND RESPONDENT