IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH THURSDAY, THE 29TH JANUARY 2009 / 9TH MAGHA 1930 WP(C).No. 15706 of 2008(T) ---------------------------------------------- PETITIONER(S): ---------------------- A.J.JOSE, AGED 48 YEARS, S/O.LATE JOSEPH, PROPRIETOR, STAR TRADING COMPANY, 'ANJALI', THOPPIL VEEDU, ARATTUKUZHI, KOOTHALI POST, THIRUVANANTHAPURAM. BY ADV. SRI.K.L.NARASIMHAN SRI.N.KRISHNA PRASAD RESPONDENT(S): ------------------------- 1. THE COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. 2. DEPUTY COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. 3. INTELLIGENCE OFFICER (IB) COMMERCIAL TAXES, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SHRI C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 15706 OF 2008 T -------------------------------------- Dated this the 29th January, 2009 JUDGMENT Petitioner challenges Exts.P2, P3 and P4. Ext.P2 is a proceeding of the third respondent Intelligence Officer by which the petitioner was visited with penalty in a sum of Rs.52,10,532/= under Section 45A of the KGST Act. Petitioner carried the matter in Revision before the second respondent Deputy Commissioner who rejected the Revision Petition by Ext.P3 order. In further Revision, the first respondent Commissioner of Commercial Taxes found that the contentions are without any basis and dismissed the Revision Petition. 2. Briefly put, the case of the petitioner is as follows: Petitioner is an assessee under the KGST Act. He is having his place of business at Panachamood, the border area of the State. He has been purchasing rubber sheets and effecting resale within the State. According to the petitioner, all the consignments were supported by Form 25 Declaration, the WPC.15706/08 T 2 rubber sheets being taxable at the point of last purchase in the State. It is stated that the purchasers of the petitioner had given Delivery Notes in respect of the purchases made by them. Petitioner has produced Ext.P1 series as Form 25 Declarations given by the various traders. The third respondent initiated an enquiry. It is stated that the third respondent held that the Registration Number of the goods vehicles were found to be bogus, and that the traders who have made entries in their Books of Accounts to show that they have received the goods, have made the entries without actually receiving the same. There was no actual purchase and the dealers connived with the petitioner in issuing Form No.25 declaration. It is also found that for the year 2002 - 2003 there was suppression of taxable turnover by showing as non-taxable turnover in the monthly and annual returns filed. The maximum penalty was imposed. 3. I heard Shri N. Krishna Prasad, learned counsel for the petitioner and the learned Government Pleader. Learned counsel for the petitioner would contend that the penalty orders WPC.15706/08 T 3 are unsustainable. According to him, there is violation of the principles of natural justice. The petitioner ought to have been permitted to cross-examine the other dealers, it is submitted. It is also contended that the petitioner should have been permitted to verify the Delivery Notes with the check post Declarations so that the allegation that the goods were not transported in lorries and whether the vehicle numbers corresponded to Scooters/Motor Cycles/Cars was correct or not. Per contra, learned Government Pleader would point out that this is a case where the vehicle numbers entered in the Register maintained in the check post would categorically show that the claim of the petitioner can only be false. The vehicle numbers are alleged to be lorries used for transporting huge quantities of rubber. When the vehicle numbers were actually cross-checked with the Motor Vehicles Department, it was found that they were found to be Hero Honda Motor Cycle, Suzuki Motor Cycle, Maruthi Zen Car, Bajaj Sunny Motor Cycle, Hindustan Ambassador Car and Bajaj Chetak Scooter. That is to say, there was no actual WPC.15706/08 T 4 transport of rubber sheets and those dealers are purported to issue Form 25 Declarations to the petitioner and the Authorities have found that it revealed that the entries were made to show that they have received the goods without actually receiving the same. This is a case where the correctness or the falsity of the petitioner's case can be clinchingly decided on the basis of the three materials, ie. the Delivery Notes, the Check Post Declarations and the Vehicle Numbers as contained in these two documents, and the result of the cross-checking of the type of the vehicles with the Motor Vehicles Department on the basis of these two incontrovertible material. It is clear that the concurrent findings entered by the three statutory authorities are borne out by the records to the effect that there was no transport of the goods to the alleged purchasers from the petitioner who had also proceeded to provide Form 25 Declarations to make it appear that they had effected the alleged purchases within the State. Learned counsel for the petitioner was also permitted to go through the records. The finding of the Authorities that the WPC.15706/08 T 5 petitioner had sought to make it appear that there were purchases from him within the State, making them last purchases and the Form 25 Declarations were also purported to be produced in this regard, when in point of truth, there was absolutely no transfer of goods to the alleged purchasers, is supported by the incontrovertible nature of the documents which are also made available to this Court. In the light of this, I do not see any reason why any aid should be extended to the petitioner and the Writ Petition is dismissed. Sd/= K. M. JOSEPH, JUDGE kbk. // True Copy // PS to Judge