W.P.(C) Nos. 806 of 2017-A and 35319 of 2016-L. Case: I.K. Muneer Vs The Commercial Tax Officer, Kollam and Ors.. High Court of Kerala (India)
|W.P.(C) Nos. 806 of 2017-A and 35319 of 2016-L
|For Appellant: Bobby John and S. Ajayghosh Kumar, Advs. and For Respondents: V.K. Shamsudheen, Government Pleader
|K. Vinod Chandran, J.
|Constitution Of India - Article 226; Kerala Value Added Tax Act, 2003 - Sections 55, 74
|2017 (1) KLT 605
|January 20, 2017
|High Court of Kerala (India)
K. Vinod Chandran, J., (At Ernakulam)
The identical petitioner is aggrieved with two inter connected actions of the Commercial Taxes Department, which have to be dealt with separately.
The petitioner, in W.P.(C) No. 806 of 2017 is aggrieved with the assessment order, under the Kerala Value Added Tax Act, 2003 [for brevity "KVAT Act"], for the year 2014-15 as passed by Exhibit P6. The assessment was re-opened on the basis of a compounding effected, on an offence detected. The pre-assessment notice also made proposals for re-opening on other counts also. The petitioner, as of now, is aggrieved with the re-opening made on the compounding made and accepted by the petitioner on the ground that the turnover computed as suppressed by the Intelligence Officer and the Maximum Retail Price (MRP) taken to estimate the sales turnover of the suppressed opening stock.
The petitioner also submits that a rectification application was filed from the compounding application on the assessment being finalised. The challenge against the compounding fee determined is also on the ground of irregularity in computing the suppressed turnover and erroneously applying the MRP to arrive at the sales turnover. The rectification application was dismissed as per Exhibit P2. The petitioner is said to have filed a revision before the Deputy Commissioner as per Exhibit P3 against the rejection of the rectification application, which was filed to rectify the order of compounding. The petitioner contends that while the revision is pending, there could be no recovery made as per Exhibit P6 assessment, since if the revision is allowed in favour of the petitioner and the compounding fee reduced; the assessment also would be proportionately reduced. The learned Counsel relies on a Division Bench decision of this Court in Trichur Auto Spares v. State of Kerala [ (2014) 22 KTR 508 (Ker)] to contend that the order of compounding though on the option and admission of the assessee, could be challenged by the assessee.
The learned Government Pleader submits that compounding cannot be disturbed going by the decision of the Division Bench in Jaya Jewellers v. The Commissioner of Commercial Taxes in W.P.(C) No. 19641 of 2003 dated 20.09.2007. The learned Government Pleader would submit that the turnover computed as suppression and the sale price proposed to be assessed for the suppression detected were specified in the penalty notice and the same was also evident from...
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