IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 23RD NOVEMBER 2010 / 2ND AGRAHAYANA 1932 WP(C).No. 34137 of 2010(N) -------------------------- PETITIONER: ------------------ T.I.HASEEB, M/S.ECHANTY TRADERS, THYPURAYIDAM, KANJIRAPPILLY, KOTTAYAM DISTRICT. BY ADVS. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON SRI.MAHESH V.MENON RESPONDENTS: ---------------------- 1. INSPECTING ASST.COMMISSIONER, DEPT. OF COMMERCIAL TAXES, PATHANAMTHITTA. 2. THE ASSISTANT COMMISSIONER (AUDIT ASSESSMENT), COMMERCIAL TAXES, PATHANAMTHITTA. 3. DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, KOLLAM. 4. THE DEPUTY TAHSILDAR (RR), KANJIRAPPILLY. BY SENIOR GOVERNMENT PLEADER, SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.34137 of 2010-N ---------------------------------------- Dated this the 23rd day of November, 2010. J U D G M E N T With respect to the assessment year 2006-07, the petitioner could not file annual return. Hence the assessment was completed by the second respondent as per Ext.P1 order, imposing tax liability to the tune of Rs.4,62,812/-. Ext.P2 statutory appeal was filed against the said assessment. The appellate authority had issued Ext.P3 notice directing the petitioner to produce proof regarding payment of admitted tax, in order to entertain the appeal. Subsequently the appeal was rejected through Ext.P4 order, alleging that the petitioner had failed to produce proof regarding payment of admitted tax. Aggrieved by Ext.P4, the petitioner had filed further appeal before the Kerala Value Added Tax Appellate Tribunal, Ernakulam. In Ext.P6 order, the Tribunal found that the petitioner was prevented by sufficient cause from producing proof regarding payment of admitted tax, before the first appellate authority. W.P(C) No.34137 of 2010-N 2 Therefore the Tribunal found it is only just and proper to permit production of evidence before the first appellate authority. Hence the matter was remitted back to the first appellate authority with specific direction to produce proof for payment of admitted tax. Further, the first appellate authority was directed to restore the appeal and to dispose of the same on merits, on production proof regarding payment of admitted tax. 2. Subsequent to remand, the first appellate authority had issued Ext.P7 notice calling upon the petitioner to produce certificate issued regarding remittance of admitted tax. According to the petitioner he had produced copies of receipts regarding payment of admitted tax. But observing that the petitioner had failed in producing certificate obtained from the authority, the appeal was again rejected and the original order was restored. According to the petitioner, subsequent to rejection of the appeal the petitioner had approached the assessing authority and Ext.P9 certificate was obtained. W.P(C) No.34137 of 2010-N 3 The rejection of the appeal insisting on production of the certificate of payment is quite unreasonable, is the contention. 3. Learned counsel for the petitioner points out that even going by Ext.P3 it is evident that the admitted tax due is Rs.16,769/- only and evidence was produced before the appellate authority to show that the petitioner had remitted tax more than the amount mentioned in Ext.P3. 4. Heard, learned Government Pleader appearing on behalf of the respondents. It is contended that Ext.P9 certificate does not disclose payment of admitted tax in full. On the other hand what is evidenced from Ext.P9 is that, since annual return was not filed by the petitioner, the liability with respect to admitted tax could not be ascertained. It is further submitted that Ext.P9 revealed only the details of total payments made by the petitioner during the relevant year. It is pointed out that there was failure on the part of the petitioner in filing the return under Section 20 of the KVAT Act, and the liability of the W.P(C) No.34137 of 2010-N 4 petitioner could not be ascertained. 5. Considering the rival submissions and the facts and circumstances of the case, I am of the view that the petitioner can be given liberty to approach the first respondent assessing authority to obtain a proper certificate regarding payment of of admitted tax. The petitioner will be at liberty to file annual return or any rectified returns as the case may be. The assessing authority shall calculate the tax liability either on the basis of the annual return which will be filed, or on the basis of the monthly returns already filed, and shall issue certificate regarding payment, if necessary after collecting any deficit amount due from the petitioner. 6. The assessing authority shall do the needful in this regard within two weeks from the date of receipt of any request from the petitioner. On production of such certificate, the third respondent appellate authority is directed to restore the appeal, which is rejected through Ext.P8, and to dispose of the same on merits, at the earliest W.P(C) No.34137 of 2010-N 5 possible, at any rate within a period of one month from the date of production of proof regarding admitted tax. 7. It is made clear that the petitioner should produce the required certificate at the earliest possible, at any rate within a period of six weeks from the date of receipt of a certified copy of this judgment. Sd/- C.K.ABDUL REHIM JUDGE //True Copy// P.A to Judge ab W.P(C) No.34137 of 2010-N 6