IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 16TH SEPTEMBER 2010 / 25TH BHADRA 1932 WP(C).No. 33619 of 2004(B) -------------------------- PETITIONER(S): --------------- M/S.KEMI VENEERS, CHELAKULAM PATTIMATTOM P.O. PERUBAVOOR, ERNAKULAM DISTRICT A PARTNERSHIP FIRM REP. BY M.M.MUJEEB RAHMAN, MANAGING PARTNER. BY ADV. SRI.E.P.GOVINDAN SRI.A.J.ANTONY RESPONDENT(S): --------------- 1. THE INTELLIGENCE OFFICER(IB), COMMERCIAL TAXES, MATTANCHERRY. 2. THE COMMISSIONER OF COMMERCIAL TAXES, KERALA AT TRIVANDRUM. 3. THE STATE OF KERALA, REP. BY THE SECRETARY, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY G.P.SRI.K.P.PRADEEP THIS WRIT PETITION ( CIVIL) HAVING BEEN FINALLY HEARD ON 16/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). No.33619/2004 PETITIONERS EXTS: EXT.P1:- COPY OF THE PENALTY ORDER DTD.30.5.2002 BY FIRST RESPONDENT EXT.P2:-COPY OF THE BILL NO.83 DT.30.6.2000 OF M/S.M.K.TRADING CO., CUMBUM. EXT.P3:-COPY OF ORDER DT.9.4.2003 OF DY.COMMR., COMMERCIAL TAXES, MATTANCHERRY. EXT.P4:- COPY OF ORDER DT.24.4.2004 OF R2. RESPONDENTS EXTS: NIL /TRUE COPY/ P.A.TO JUDGE P.R.RAMACHANDRA MENON, J. ------------------------------------------- W.P.(C) No.33619 of 2004 ----------------------------------- Dated this the 16th day of September 2010 J U D G M E N T Petitioner is challenging Ext.P1 order passed by the 1st respondent imposing a penalty of Rs.72,440/- under Sec.45(A) of the KGST Act in respect of the assessment year 2000-01. The learned counsel for the petitioner submits that the 1st respondent has no power, jurisdiction or competence to initiate such an action under Sec.45(A) of the KGST Act. 2. It is stated that the petitioner, being aggrieved of Ext.P1, challenged the same by filing a revision petition before the Deputy Commissioner, which culminated in Ext.P3 order declining interference. The petitioner preferred a second revision petition by approaching the 2nd respondent who considered the matter and rejected the same by Ext.P4 order. This made the petitioner to approach this Court; W.P.(C) No.33619 of 2004 -: 2 :- particularly when confronted with coercive proceedings under the R.R.Act. 3. The learned counsel for the petitioner submits that the observation made by the 1st respondent in Ext.P1 referring to the three incriminating circumstances cannot be correct at all, as two instances are very much covered by Ext.P2 bill issued by the concerned trader in Cumbum, Tamil Nadu. It is stated that the petitioner is not in any way connected with the third transaction mentioned in Ext.P1 and that, from where the 1st respondent collected such information still remains obscure. The learned counsel further submits that the petitioner had in fact produced a copy of Ext.P2 before the Deputy Commissioner; who however did not look into the same. Similar case is put forth, in respect of the proceedings finalized by the 2nd respondent as well. 4. Heard the learned Government Pleader as well. 5. Going by the materials on record, it is seen that Ext.P1 order passed by the 1st respondent was after issuance of a notice and that the notice was duly served upon the W.P.(C) No.33619 of 2004 -: 3 :- petitioner as revealed from the postal acknowledgment returned. In spite of the receipt of the notice, no explanation was offered and no books of accounts were produced by the petitioner, which led to Ext.P1 order. The petitioner contended that no sufficient opportunity was given in this regard. 6. Still, there is a contention that the petitioner had produced the materials before the Deputy Commissioner. There is a specific observation in Ext.P3 order passed by the said authority, holding that no evidence was produced by the petitioner to prove the disputed transactions. In respect of the proceedings taken up before the 2nd respondent, the sequence of events has been described with reference to more details. As discernible from the last paragraph of Ext.P4 order, it has been observed therein, that the petitioner had eventually admitted that purchase turnover of Rs.96,800/- was not accounted and that he had applied for composition of the offence. It has been further observed that, even at that stage, no material was produced to show that the transactions were W.P.(C) No.33619 of 2004 -: 4 :- accounted or that the tax due thereon had been paid. There is no explanation or plea as to the observation made by the Commissioner in Ext.P4 that the same is not wrong or perverse in any manner, but for the limited contention raised in 'Ground I', in respect of Ext.P3 order passed by the Deputy Commissioner. 7. Another aspect to be looked into is that the challenge raised by the petitioner in this writ petition is only with regard to Ext.P1 order passed by the 1st respondent. There is no challenge against Ext.P3 order passed by the Deputy Commissioner or Ext.P4 order passed by the 2nd respondent/Commissioner declining interference in the concerned Revision Petition. In view of the admitted facts, Ext.P1 order passed by the 1st respondent has already got merged with the Ext.P3 order passed by the Deputy Commissioner and later got merged with Ext.P4 order passed by the 2nd respondent/Commissioner, the second revisional authority. This is being the position, Ext.P4 order still stands which is not sought to be set aside and as such, the Writ W.P.(C) No.33619 of 2004 -: 5 :- Petition is liable to be set aside on this score alone. This Court finds that the impugned order Ext.P1 as well as the revisional orders passed by the concerned authorities as borne by Exts.P3 and P4 are 'speaking orders' dealing with the facts and figures, giving sufficient reasons for the inference arrived at. 8. In the above facts and circumstances, there is absolutely no scope for interference. The Writ Petition fails. It is dismissed accordingly. However, it is made clear that this will not stand in the way of the petitioner in seeking to clear the liability by availing the benefit of the 'Amnesty Scheme' declared by the State, which is stated as available till 31.12.2010. P.R. RAMACHANDRA MENON, JUDGE. Jvt