IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 2ND MARCH 2010 / 11TH PHALGUNA 1931 WP(C).No. 6517 of 2010(L) ------------------------- PETITIONER: -------------- JOBY KOSHY, PRORPIETRIEX, D.J.HELMETS, TRANQURIL TOWERS, SEA PORT AIR PORT ROAD, KAKKANAD, COCHIN. BY ADV. SRI.S.ANANTHAKRISHNAN SRI.N.K.SUBRAMANIAN RESPONDENTS: ----------------- 1. INTELLIGENCE OFFICER, SQUAD NO.6, DEPT.OF COMMERCIAL TAXES, EDAPALLY, ERNAKULAM. 2. COMMERCIAL TAX OFFICER, 2ND CIRCLE, PALARIVATTOM, ERNAKULAM-25. BY GOVT. PLEADER, SRI. C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/03/2010, ALONG WITH 6530 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.Ramachandra Menon, J. ------------------------------------------ W.P.(C) Nos.6517 & 6530 of 2010 ------------------------------------------ Dated this the 2nd day of March, 2010 JUDGMENT The issues involved in both these cases are common and hence they are heard and disposed of together. 2. The business premises of the petitioners were subjected to search, pursuant to which Ext.P1 notice was issued under Section 44(8) of the Kerala Value Added Tax Act read with Section 44(10) asking the petitioners to show cause within the specified time as to why the proposed penalty shall not be imposed upon them. 3. The learned counsel for the petitioners submits that the issuance of Ext.P1 notice by itself is wrong and illegal and the circumstances contemplated under the above provisions, particularly Section 44(8) and 44(10) are on entirely different circumstances and that merely for the reason that the goods have W.P.(C) Nos.6517 & 6530 of 2010 - 2 - been found in an undeclared godown attracting Section 44(10), the maximum penalty as shown in Section 44(8) cannot be imposed upon them. 4. Heard the learned Government Pleader as well who submitted that the idea and circumstance of the petitioners challenging Ext.P1 proceedings are quote wrong and unfounded as the circumstances dealt with under the provisions referred to above are very much attracted to the case in hand. 5. After hearing both the sides, this Court finds that there is absolutely no case for the petitioners that the goods were traced from a place which was already declared by the petitioners. Nowhere in the writ petition, the petitioner has submitted that application of Section 44(10) is not attracted to the case in hand because of the fact that the godown was a declared one. That apart, the petitioner has been given opportunity to explain the facts and figures as borne out by Exts.P1 and P2. W.P.(C) Nos.6517 & 6530 of 2010 - 3 - 6. The learned Government Pleader on instructions submits that the proceedings have not been finalized so far. It is also brought to the notice of this Court that the issue, particularly with regard to the circumstances as contemplated under Section 44(8) and Section 44(10) has very much been dealt with and considered by a Division Bench of this Court as per the decision reported in Sajeev v. Intelligence Officer (2009 (4) KLT 601) wherein it has been specifically held that the circumstances as contemplated under Section 44(8) are very much attracted to a case involving Section 44(10) as well. 7. However, the learned counsel for the petitioners submits that merely for the reason that the goods have been found in an undeclared godown, Section 44(10) by itself is not a good reason to impose the maximum penalty under Section 44 (8). The quantum of penalty has to be adjudicated on the basis of concrete facts and figures and also with reference to the relevant books of accounts. W.P.(C) Nos.6517 & 6530 of 2010 - 4 - 8. This Court finds that this is not a matter to be interfered with at this stage and the petitioners have to be relegated to pursue their remedy in response to Ext.P1/P2 notice by raising appropriate objections, if any, and the matter shall be finalized by the first respondent in accordance with law after giving an opportunity of hearing to the petitioners, provided the petitioners satisfy the requirements as stipulated in Ext.P1/P2 within one week. The proceedings as above shall be finalised as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment. Writ petitions are disposed of accordingly. P.R.Ramachandra Menon, Judge vns