T.P.George Vs. the Commercial Tax Officer - Court Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN MONDAY, THE7H DAY OF JULY201416TH ASHADHA, 1936 WP(C).No. 17160 of 2014 (T) ---------------------------- PETITIONER(S): -------------------------- T.P.GEORGE PROPRIETOR, THADATHIL CYCLE EMPORIUM, MARKET ROAD THODUPUZHA. BY ADVS.SMT.S.K.DEVI SRI.M.RAJ MOHAN RESPONDENT(S): ---------------------------- 1. THE COMMERCIAL TAX OFFICER DEPARTMENT OF COMMERCIAL TAXES, IST CIRCLE THODUPUZHA - 685 584.

2. THE DEPUTY COMMISSIONER (APPEALS) DEPARTMENT OF COMMERCIAL TAXES PUBLIC LIBRARY BUILDINGS, SASTRI ROAD KOTTAYAM - 686 002.

3. THE DEPUTY TAHSILDAR (RR) THODUPUZHA - 685 584. R BY (SR.) GOVERNMENT PLEADER SMT. SHOBA ANNAMMA EAPEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON0707-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 17160 of 2014 (T) ---------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXHIBIT-P1- TRUE COPY OF THE ASSESSEMENT ORDER

NO. 32542290613/2011- 12 DATED2312/2013. EXHIBIT-P2- TRUE COPY OF THE ORDER

NO. 32542290613/2012-13 DATED2312/2013 EXHIBIT-P3- TRUE COPY OF THE APPEAL DATED0602/2014 FILED AGAINST EXHIBIT-P1 EXHIBIT-P4- TRUE COPY OF THE APPEAL DATED0602/2014 FILED AGAINST EXHIBIT-P2 EXHIBIT-P5- TRUE COPY OF THE STAY ORDER

KVATA NOS. 391 AND392OF2013DATED1306/2014. EXHIBIT-P6- TRUE COPY OF THE ADDITIONAL GROUND DATED2506/2014 FOR THE YEAR201112. EXHIBIT-P7- TRUE COPY OF THE ADDITIONAL GROUND DATED2506/2014 FOR THE YEAR201213 RESPONDENT(S)' EXHIBITS:``NIL --------------------------------------- // TRUE COPY // P.A TO JUDGE. SB K. VINOD CHANDRAN, J.

===================== W.P.(C) No. 17160 of 2014 ====================== Dated this the 7th day of July, 2014

JUDGMENT

The petitioner is aggrieved by Ext.P5 interim order passed in two appeals filed for the assessment years 2011-12 and 2012-13, wherein the petitioner has been directed to pay 35% of the amounts demanded as per separate demand notices. The petitioner in fact was a dealer who was paying presumptive tax since allegedly the petitioner's turn over was below the limit prescribed under Section 6(5) of the Kerala Value Added Tax Act, (KVAT), 2003. However, admittedly the petitioner's turn over exceeded the limit provided therein for 2011-2012. The petitioner did not seek for change over to the normal incidence of tax as provided under the statute. On detection of the same, under assessment proceedings the petitioner's turn over was assessed in accordance with the W.P.(C) No. 17160 of 2014 2 statute and the appeals are said to be pending in which the stay orders have been passed.

2. The learned Counsel for the petitioner points out the introduction of Section 25(C) by the Finance Bill 2014 by which the presumptive tax violators also were directed to be granted input tax credit. In fact, it is to be noticed that input tax credit if at all granted would be only @ 0.5% and the petitioner having crossed the limit would be exigible to pay tax at the rate provided in the schedule,for the entire turn over. Hence, the input tax credit, even if granted, would be negligible. On crossing the limit the entire turn over wold be exigible to the higher rate.

3. In such circumstance, this Court is not inclined to interfere with Ext.P5 order passed especially since the petitioner has been directed to pay only 35% of the demand for both the years. The input tax credit would only be 10% of the total tax liability @ 5%. The petitioner shall be W.P.(C) No. 17160 of 2014 3 granted one months time from today to comply with the said order. The Writ Petition stands dismissed with the above directions. Sd/- K. VINOD CHANDRAN, JUDGE SB // True Copy // P.A To Judge.