IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 19TH JUNE 2008 / 29TH JYAISHTA 1930 WA.No. 3 of 2006(A) ---------------------------------- AGAINST THE JUDGEMENT IN WPC.31304/2005 Dated 21/11/2005 .................... APPELLANTS: PETITIONERS: ---------------------------------------- 1. IBY SASI, PROPRIETRIX, AISWARYA AGENCIES, KURAVILANGAD, KOTTAYAM. 2. T.S. SASI, THUMBUNGAL HOUSE, MANJOOR P.O., KOTTAYAM. BY ADV. SRI.K.G.ANIL BABU RESPONDENTS: RESPONDENTS: ----------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT OF KERALA, TAXES DEPARTMENT,GOVT.SECRETARIAT, TRIVANDRUM. 2. THE COMMERCIAL TAX OFFICER, DEPARTMENT OF COMMERCIAL TAXES, ETTUMANOOR. 3. THE INTELLIGENCE OFFICER, COMMERCIAL TAXES, SQUAD NO.I, KOTTAYAM. 4. SHRI KURIAKOSE MATHEW, INTELLIGENCE OFFICER, SQUAD NO.I., COMMERCIAL TAXES, KOTTAYAM. BY SENIOR GOVERNMENT PLEADER SRI.MUHAMMED RAFIQ THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 19/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & A.K.BASHEER, J. ------------------------------------------------------- W.A.No. 3 of 2006 ------------------------------------------------------- Dated, this the 19th day of June, 2008 JUDGMENT H.L.Dattu, C.J. The Ist appellant before us is the assessee under the provisions of the Kerala General Sales Tax Act (“Act” for short). 2. In the writ petition filed the petitioners primarily sought for quashing of Exts.P10 and P11 communications issued by the Intelligence Officer, Commercial Taxes, Squad No.1, Kottayam and Commercial Tax Officer, Department of Commercial Taxes, Ettumanoor respectively. The other prayer in the writ petition was to direct the respondents not to initiate and complete the assessment proceedings for the assessment years 2002-2003, 2003-2004 and 2004- 2005 till the books of accounts produced by the assessee before the Intelligence Officer are returned. The further prayer in the writ petition is to issue an order of injunction, restraining the 3rd respondent from realising the penalty imposed in exercise of his powers under Sections 45 (A) and 46 of the Act. 3. Ext.P10 is the communication issued by the Intelligence Officer, Squad No.1, Kottayam dated 6-10-2005. In that he has informed the Ist appellant herein that since her sales tax representative did not WA.No.3/2006 -2- take back some of the books produced for the purpose of verification before imposing penalties under Sections 45(A) and 46 of the Act, he has forwarded the same to the assessing authority, namely the Sales Tax Officer, Ettumanoor and has further informed her to contact the Sales Tax Officer, Ettumanoor for taking back the so-called books of accounts produced by her. 4. The Sales Tax Officer, Ettumanoor by his notice/communication dated 25-8-2005 has asked the Ist appellant herein to take back the books of accounts produced for the assessment years 2002-2003 to 2004-2005 within 7 days of receipt of the notice. 5. A harmless communication/notice issued by the second and third respondents has become the subject matter of the writ petition. 6. In the writ petition it is alleged that without returning all the books of accounts that were handed over by the appellants to the Intelligence Officer, no proceedings under the Act should be taken by the authorities under the Act. 7. In the statement of objections filed, the respondents have stated that whatever books that are available with them were asked to be taken back by the appellants. Apart from that they further contend that they have no other books of accounts of the appellants. 8. It is the case of the appellants that since the books of WA.No.3/2006 -3- accounts were not returned, no proceedings should be taken against the appellants. It is the case of the respondents that whatever books of accounts were made available to them by the Ist appellant/her representative, were asked to be taken back by the appellants and they do not have any other books. 9. In our view, these are disputed facts and those disputed facts cannot be resolved in a petition filed under Article 226 of the Constitution. Keeping that in view, the learned Single Judge has disposed of the writ petition. Having gone through the orders passed by the learned Single Judge and Exts.P10 and P11 notices which were the subject matter of the writ petition, we are of the opinion that the learned Single Judge has not committed any error, whatsoever, which would call for our interference. Accordingly, the writ appeal requires to be rejected and it is rejected. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE MS/dk.