IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 14TH JULY 2011 / 23RD ASHADHA 1933 WP(C).No. 37127 of 2010(M) ---------------------------------------- PETITIONER(S): ----------------------- M/S.SHRIRAM EPC LTD., CC NO.39/3223, ANANTH TOWERS, VRM ROAD, RAVIPURAM, COCHIN-682 016, ERNAKULAM DISTRICT, REPRESENTED BY ITS BRANCH MANAGER SRI.M.C. PRAKASH. BY ADV. SRI.TOMSON T.EMMANUEL RESPONDENT(S): ------------------------- 1. THE COMMERCIAL TAX OFFICER, O/O.THE ASSISTANT COMMISSIONER (WC), COMMERCIAL TAXES, ERNAKULAM, COCHIN-682 018. 2. THE EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, THIRUVANANTHAPURAM-695 033. 3. THE ASSISTANT COMMISSIONER (WC), COMMERCIAL TAXES, PEROORKADA, THIRUVANANTHAPURAM- 695 005. R1 & R3 BY GOVT. PLEADER R2 BY ADV. MR.M. DINESH, SC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/07/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C).No. 37127 of 2010(M) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ANNUAL RETURN IN FORM NO.10B FOR THE YEAR 2008-09 FILED, BEFORE THE 1ST RESPONDENT. EXT.P1(a): COPY OF THE ANNUAL RETURN IN FORM NO.10B FOR 2009-10 FILED BEFORE THE 1ST RESPONDENT. EXT.P2: COPY OF THE NOTICE DATED 30/10/2010 FOR THE YEAR 2008-09, ISSUED BY THE 1ST RESPONDENT. EXT.P2(a): COPY OF THE NOTICE DATED 30/10/2010 FOR THE YEAR 2009-10, ISSUED BY THE 1ST RESPONDENT. EXT.P3: COPY OF THE LETTER DATED 10/11/2010, AGAINST EXT.P2, SUBMITTED BY THE PETITIONER, BEFORE THE 1ST RESPONDENT, WHO ACKNOWLEDGED IT ON 16/11/2010. EXT.P3(a): COPY OF THE LETTER DATED 10/11/2010, AGAINST EXT.P2(a), SUBMITTED BY THE PETITIONER, BEFORE THE 1ST RESPONDENT, WHO ACKNOWLEDGED IT ON 16/11/2010 EXT.P4: COPY OF THE NOTICE DATED 12/11/2010 FOR THE YEAR 2008-09, ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT ON 22/11/2010. EXT.P4(a): COPY OF THE NOTICE DATED 12/11/2010 FOR THE YEAR 2009-10, ISSUED TO THE PETITIONER ON 22/11/2010, BY THE 1ST RESPONDENT. EXT.P5: COPY OF THE LETTER DATED 03/12/2010 SENT TO THE 2ND RESPONDENT, BY THE PETITIONER, FOR PROVIDING FORM NO.20F TDS CERTIFICATE FOR THE YEARS 2008-09 AND 2009-10. EXT.P6: COPY OF THE LETTER DATED 06/12/2010, AGAINST EXT.P4 NOTICE SUBMITTED BEFORE THE 1ST RESPONDENT. EXT.P6(a): COPY OF THE LETTER DATED 06/12/2010, AGAINST EXT.P4(a) NOTICE SUBMITTED BEFORE 1ST RESPONDENT. EXT.P7: COPY OF THE COVER LETTER DATED 30/12/2008 TO COMPOUNDING APPLICATION, WHICH WAS ACKNOWLEDGED BY 1ST RESPONDENT ON 31/12/2008. EXT.P8: COPY OF THE LETTER OF ACCEPTANCE NO.KWA/JNNURM-PPU/WS- 52/PACK IV/08 DATED 16/09/2008 FOR Rs.4,28,92,000/- ISSUED BY 2ND RESPONDENT TO PETITIONER. EXT.P8(a): COPY OF THE LETTER OF ACCEPTANCE TO WORK ORDER NO.KWA/JNNURM-PIU/WS-52/PACK VI/08 DATED 16/09/2008 FOR Rs.11,28,29,000/- ISSUED BY 2ND RESPONDENT TO THE PETITIONER. EXT.P8(b): COPY OF THE LETTER OF ACCEPTANCE TO WORK ORDER NO.KWA/JNNURM-PIU/WS-52/PACK V/08 DATED 16/09/2008 FOR Rs.1,40,09,000/- ISSUED BY 2ND RESPONDENT. WP(C).No. 37127 of 2010(M) EXT.P9: COPY OF THE BACK DATED ASSESSMENT ORDER FOR THE YEAR 2008-09 SENT TO THE PETITIONER BY REGISTERED POST, BY THE 1ST RESPONDENT. EXT.P9(a): COPY OF THE BACK DATED ASSESSMENT ORDER FOR THE YEAR 2009-10 SENT TO THE PETITIONER BY REGISTERED POST, BY THE 1ST RESPONDENT. EXT.P10: COPY OF THE STATEMENT OF RUNNING BILLS ISSUED FOR 2008-09 TO 2010-11 (HALF YEAR) TO EXT.P8 SERIES OF WORK ACCEPTANCE LETTER. EXT.P11: COPY OF THE FORM NO.20F OF CERTIFICATE FOR Rs.3,51,82,631/- ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER WHILE RELEASING PAYMENT AGAINST RUNNING BILLS. EXT.P11(a): COPY OF THE FORM NO.20F CERTIFICATE FOR Rs.4,19,06,552/- ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER WHILE RELEASING PAYMENT AGAINST RUNNING BILLS. EXT.P11(b): COPY OF THE FORM NO.20F CERTIFICATE FOR Rs.1,61,32,718/- ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER WHILE RELEASING PAYMENT AGAINST RUNNING BILLS. EXT.P11(c): COPY OF THE FORM NO.20F CERTIFICATE FOR Rs.11,28,29,000/- ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER WHILE RELEASING PAYMENT AGAINST RUNNING BILLS. RESPONDENT'S ANNEXURES: ANNEXURE R1(a): COPY OF THE NOTICE ISSUED UNDER KVAT ACT AND FOR THE YEAR 2008-09. ANNEXURE R1(b): COPY OF THE NOTICE ISSUED UNDER KVAT ACT FOR THE YEAR 2009-10. ANNEXURE R1(c): COPY OF THE HEARING NOTICE ISSUED DATED 12/11/2010 FOR THE YEAR 2008-09. ANNEXURE R1(d): COPY OF THE HEARING NOTICE ISSUED DATED 12/11/2010 FOR THE YEAR 2009-10. ANNEXURE R1(e): COPY OF THE ASSESSMENT ORDER WITH DEMAND NOTICE AND PROOF FOR SENDING NOTICES UNDER REGISTERED POST FOR THE YEAR 2008-09. ANNEXURE R1(f): COPY OF THE ASSESSMENT ORDER WITH DEMAND NOTICE AND PROOF FOR SENDING NOTICES UNDER REGISTERED POST FOR THE YEAR 2009-10. //TRUE COPY// P.S. TO JUDGE rs S.SIRI JAGAN, J. ================== W.P.(C).No. 37127 of 2010 ================== Dated this the 1st day of August, 2011 J U D G M E N T The petitioner is a public limited company. It is engaged in the business of executing contracts. The petitioner is a registered dealer under the Kerala Value Added Tax Act and Central Sales Tax Act before the 1st respondent. The petitioner opted for compounding of tax under the first proviso to Section 8(ii) of the KVAT Act for the years 2008-09 and 2009-10. During the said period, the petitioner had executed contracts on behalf of the 2nd respondent. The payment for the work done was released after deducting tax at source, but TDS certificates were not readily issued. The petitioner wanted to produce TDS certificates in the assessment proceedings under Section 25(i) of the KVAT Act. But the assessing authority wanted to complete the assessment expeditiously and did not grant any time to produce TDS certificates to prove that the petitioner had paid compounded tax. Pursuant to the same, Exts.P2 and P2(a) notices have been issued for assessment and imposition of penalty. The petitioner is challenging the same on the ground that the petitioner has not been given sufficient opportunity to produce TDS certificates in form No.20F. The respondents have also passed Exts.P9 and P9(a) orders pursuant to the notices. The petitioner seeks the following reliefs: “i) to issue a writ in the nature of certiorari or any other appropriate writ or order quashing Exhibit P2 and P2(a), notices w.p.c.37127/10 2 issued by the 1st respondent, U/s.25(1) of the KVAT Act. ii) to issue a writ in the nature of mandamus or any other appropriate writ or order directing the 2nd respondent to issue TDS certificate in Form No.20F, within a time limit fixed by this Hon'ble court, till such time finalization of assessment proceedings as per Ext.P2 and P2(a) by the 1st respondent may be directed to be kept in abeyance. iii) to issue a writ in the nature of mandamus or any other appropriate writ or order directing the 1st respondent to accept any objections along with TDS Certificates in Form No.20F, filed by the petitioner, within a time limit fixed by this Hon'ble Court; iv) to issue a writ in the nature of mandamus or any other appropriate writ or order directing the 1st respondent to issue a further notice if the officer who issued Ext.P2 and P2(a) notice got transferred.” v) to pass such other orders as this Hon'ble Court may deem justified in the facts and circumstances of the case; vi) to award the cost of this proceedings to the petitioner; vii) to issue a writ in the nature of certiorari or any other writ or order quashing Ext.P9 and P9(a) orders issued to the petitioner by the 1st respondent; and viii) to issue a writ in the nature of mandamus or any other appropriate writ or order directing the 1st respondent to pay compensatory costs to the petitioner for the fabrication and producing of records and there by trying to mislead this Hon'ble Court.” 2. I have heard the learned Government Pleader also. 3. I am of opinion that the petitioner should be given sufficient time to produce certificates in Form No 20F. In the above circumstances, I quash Exts.P9 and P9(a) orders directing the assessing authority to pass fresh orders expeditiously, after issuing notice to the petitioner and hearing him. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.37127/10 3