IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH THURSDAY, THE 7TH AUGUST 2008 / 16TH SRAVANA 1930 WP(C).No. 22599 of 2008(M) -------------------------------------- PETITIONER: ------------------ M/S.ALAPATT TRADING CORPORATION BUILDING NO.39/2138, SADANAM ROAD, ERNAKULAM, KOCHI-682 016,REPRESENTED BY ITS MANAGING PARTNER JOSE ALAPATT. BY ADV. SRI.V.P.SUKUMAR SRI.BEJOY CHERIYAN RESPONDENT: --------------------- THE INTELLIGENCE OFFICER, SQUAD NO.III, COMMERCIAL TAXES, ERNAKULAM. BY GOVERNMENT PLEADER SHRI C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 22599 OF 2008 M -------------------------------------- Dated this the 7th August, 2008 JUDGMENT Petitioner challenges Ext.P5 order imposing penalty on the petitioner. Petitioner also seeks a declaration that Sub-section (10) of Section 44 of the KVAT Act is discriminatory and unconstitutional. Briefly put, the case of the petitioner is as follows: Shri Jose Alapatt is the Managing Partner of M/s. Alapatt Jewellery and also of M/s. Alapatt Trading Corporation. He is also the Managing Director of M/s. Alapatt Consumer Electronics India Pvt. Ltd. The three Concerns are independent registered dealers under the Act. M/s. Alapatt Jewellery is dealing with gold and silver ornaments whereas the other two Concerns are dealing in Home Appliances. Home Appliances were found on the fourth floor of the House of Alapatt. According to petitioner, those goods belong to the petitioner as well as M/s. Alapatt Consumer Electronic India Pvt. Ltd. and WPC.22599/08 M 2 they were duly accounted in the Books of Accounts of those dealers. The complaint is that without issuing notice to the petitioner and without also giving sufficient time to devise a reply, the impugned order has been passed. It is further contended that the Authority has proceeded to impose the maximum penalty provided under Section 44(8) of the KVAT Act. In this context, learned counsel for the petitioner seeks support from the decision in St. Michael's Oil Mills v. State of Kerala (1988 (68) STC 360). There is a challenge to Sub- section (10) of Section 44 as being discriminatory. It is his case that unintentional omission to declare the godown is made a ground to punish the dealer as if he has attempted to evade payment of tax. 2. I heard the learned Government Pleader also. Learned Government Pleader would point out that the petitioner has an alternate remedy available to him. I am inclined to relegate the petitioner to pursue the remedy by way of filing an Appeal. Accordingly, the petitioner is relegated to prefer Appeal against WPC.22599/08 M 3 Ext.P5 order. If Appeal is preferred in time, the same will be considered and a decision taken thereon in accordance with law after affording an opportunity of hearing to the petitioner. Petitioner has already paid a sum of Rs.5 lakhs as ordered in the interim order. It is further ordered that if the petitioner pays a sum of Rs.2,00,000/= (Rupees Two Lakhs) towards Ext.P5 within a period of three weeks from today, the recovery proceedings against the petitioner pursuant to Ext.P5 will be kept in abeyance till the disposal of the Appeal. I leave open the challenge to Sub-section (10) of Section 44 of the KVAt Act. The Writ Petition is disposed of as above. Sd/= K. M. JOSEPH, JUDGE kbk. // True Copy// PS to Judge