Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN TUESDAY, THE 22ND DAY OF AUGUST 2023 / 31ST SRAVANA, 1945 PETITIONER: MUSTHAFAS/O.KUNJAHAMMED,KANNAMPILLY HOUSE,KARAKKAMALA,MANANTHAVADY,WAYANAD DISTRICT PIN 670 645 BY ADV SRI.P.N.DAMODARAN NAMBOODIRI RESPONDENTS:
1 THE INTELLIGENCE OFFICERSQUAD NO II,DEPARTMENT OF COMEMRCIAL TAXES,KALPETTA,WAYANAD DISTRICT 2 THE INTELLIGENCE OFFICERSQUAD NO .IIDEPARTMENTOF COMMERCIAL TAXESKALPETTAWAYANAD DISTRICT 673 12 3 INSPECTING ASSISTANT COMMISSIONEREINT.DEPARTMENT OF COMMERCIAL TAXES,KALPETTA,WAYANAD DISTRICT 4 SRI KUNHALU PS/O.SHAMSUDHEEN,RAJILA HOUSE,ANJARAKKANDY P.O,THALASSERY,KANNUR DISTRICT 670 612 5 COMMISSIONER OF COMMERCIAL TAXESDEPARTMENT OF COMMERCIAL TAXESTAX TOWERSKARAMANATHIRUVANANTHAPUR BY ADVS. GOVERNMENT PLEADER GOVERNMENT PLEADER
OTHER PRESENT: SRI. V.K. SHAMSUDHEEN -SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ..2..
SHOBA ANNAMMA EAPEN, J.
----------------------------------------- WP.(C) No.16444 of 2014 ---------------------------------------- Dated this the 22nd day of August, 2023
JUDGMENT
The writ petition is filed with the following prayers:-
“ i) to issue a writ in the nature of certiorari or any other appropriate writ or order quashing Ext.P3 notice issued by the first respondent and direct to release the illegally collected amount; ii) to issue a writ in the nature of mandamus or any other appropriate writ or order as declaring that, both proceedings are not to be initiated against the same person, at a time, against the same issue, if so it is clear violation of the Article 20(2) of Constitution of India;”
2. Petitioner, a farmer, who is in possession of 2 acres of land in Anjukunnu Village, Wayanad District obtained 2,624.000 kgs pepper from his property. Since the
selling price of pepper is higher in Karnataka State, the petitioner transported aforesaid quantity of pepper on 1.1.2014 in a vehicle bearing Regn.No.KL-58 E 3124 from ..3.. Kerala to Karnataka. The vehicle was detained by the first respondent when it reached at Tholpetty by Ext.P3 notice and security deposit of Rs.1,33,824/- was demanded under Section 47(2) and an amount of Rs.1,33,824/- was demanded as penalty under Section 69(1) of the Kerala Value Added Tax Act, 2003 (for short 'the KVAT Act'). On coming to know about the detention of the vehicle and the goods, the petitioner submitted Ext.P4 letter before the first respondent and Ext.P5 letter was submitted by the driver of the vehicle to the first respondent. But, the petitioner was forced to remit a total amount of Rs.2,67,648/- as demanded by the first respondent and got release of the goods and vehicle. Aggrieved by the same, the petitioner has approached this Court with the above writ petition.
3. The first respondent filed a counter affidavit contending as follows:- The goods transported was pepper, which is notified goods under Section 46(3) of the KVAT ..4..
Act, and it prescribes that any consignment under transport should be accompanied by any of valid document prescribed under this section. Anyone, who transports goods with an intention to sale, should keep the mandatory documents irrespective of a farmer or a trader. At the time of inspection of the vehicle, notice would be issued to the person in charge of goods through the driver of vehicle, in case the documents under Section 46(3) was not taken along. It is further contended that on the spot inspection conducted by the first respondent in the property of the petitioner in the light of the land tax receipt produced by the petitioner, it was found that the land owned by the petitioner is a plain land with full of bushes and weeds and it is not a place
where 10 kgs. of pepper can be yielded. The certificate issued by the Agricultural Officer submitted as Ext.P1 does not show sufficient yield of pepper as narrated by the petitioner and hence the same is insufficient to prove that the pepper transported was cultivated in the land in ..5.. question. The person, who appeared for release of the consignment under transport, has claimed release of the vehicle also. The owner of the vehicle did not appear at any stage of the proceedings though ample opportunities were given, and thus penalty was imposed. The case of the petitioner is quite technical in nature, that there is no statutory notice under KVAT Act to demand the penalty under Section 69(1), but the same has been demanded mentioning explicitly and separately in Form No.17A. The legislative intention is to prevent evasion of tax and the demand made by the first respondent is legal.
4. Heard the learned counsel for the petitioner as well as the learned Government Pleader.
5. On a perusal of Ext.P3 notice under Section
47(2), it is seen that the security deposit of Rs.1,33,824/- as well as penalty under Section 69(1) of KVAT Act, of Rs.1,33,824/- were demanded. When the goods and vehicle were detained by the first respondent-Officer, the petitioner, ..6.. for release of the goods, admittedly paid Rs.2,70,832/- on 1.1.2014 without any protest and got release of the goods as well as the vehicle.
6. Learned counsel for the petitioner submits
that Ext.P3 is a composite notice for demand of security deposit under Section 47(2) as well as demand of penalty under Section 69(1) of KVAT Act. Learned counsel for the petitioner further submits that issuance of composite notice is illegal and the Officer ought not to have issued composite notice demanding the security deposit of Rs.1,33,824/- as well as penalty under Section 69(1) of KVAT Act, 2003 of Rs.1,33,824/-.
7. Learned Government Pleader, per contra,
submits that though composite notice was issued as per Ext.P3, the petitioner, at the time of detention, approached the authorities and remitted the amount of Rs.2,67,648/- and got release of the goods as well as the vehicle without raising any objection. Learned Government Pleader further ..7.. submits that since the penalty amount demanded had been paid by the petitioner, the respondents released the vehicle to the petitioner and could not take any further action
against the alleged owner of the vehicle. On a perusal of Section 47 of the KVAT Act, it is clear that there is no provision for issuance of a composite notice under section 47(2) and Section 69(1) of the KVAT Act. Both are independent proceedings. While considering the case, it is to be noted that no final orders have been passed under Section 47(6) nor under Section 69(1) by the competent authority.
8. Considering the facts and circumstances of the
case, I am of the view that interest of justice would be best met if a direction is given to the competent authority to consider and to finalise the proceedings under Sections 47(6) as well as the proceedings under Section 69(1) of KVAT Act,2003 after affording an opportunity of hearing to the petitioner. ..8.. In the result, the writ petition is disposed of and
the competent authority is directed to consider the matter and to finalise separate proceedings under Sections 47(6) and 69(1) of KVAT Act with notice to the petitioner and affected parties, if any, within a period of two months from the date of receipt of a certified copy of this judgment. Before any such orders are passed by the competent authority, the petitioner as well as the affected parties shall be afforded an opportunity of being heard.
The writ petition is disposed of as above. sd/- SHOBA ANNAMMA EAPEN, JUDGE MBS/ ..9.. APPENDIX OF WP(C) 16444/2014 PETITIONER'S EXHIBITS:-
EXHIBIT P1 TRUE COPY OF THE CERTIFICATE NO P.N.M 2/013-014 DATED 14-03-2014 ISSUED BY THE AGRICULTURAL OFFICER,KRISHI BHAVAN,PANAMARAM EXHIBIT P2 TRUE COPY OF THE LAND TAX RECEIPT NO G 87637 DATED 25-01-2014 ISSUED BY THE VILLAGE OFFICER,ANJUKUNNU VILLAGE EXHIBIT P3 TRUE COPY OF THE NOTICE IN FORM 17A NO VCR II/13-14,DATED 01-01- 2014 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER EXHIBIT P4 TRUE COPY OF THE LETTER DATED 01-01-2014 SUBMITTED BY THE PETITIONEER BEFORE THE 1ST RESPONDENT EXHIBIT P5 TRUE COP[Y OF THE LETTER FILED BY MR,.NOUFAL THE DRIVER OF THE VEHICLE TO THE 1ST RESPONDENT EXHIBIT P6 TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF THE VEHICLE NO KL-58-E 3124,DTD 10-01-2011 ISSUED BY THE ADDL.REGISTERING AUTHORITY.THALASSERY