IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 18TH NOVEMBER 2009 / 27TH KARTHIKA 1931 WP(C).No. 32990 of 2009(P) ------------------------------ PETITIONER: ------------- E.FAIZAL, (PROPRIETOR) EDAPPAYIL SANITATIONS, H.S.ROAD, KOPPAM, PALAKKAD DISTRICT. BY ADV. SRI.V.P.SUKUMAR SRI.KURYAN THOMAS RESPONDENT(S): ------------------- 1. THE INTELLIGENCE OFFICER SQUAD NO.1, COMMERCIAL TAXES, PALAKKAD. 2. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER MR. C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) 32990 / 2009 APPENDIX PETITIONER'S EXHIBITS Ext.P1 : COPY OF THE RENT AGREEMENT DATED 07.10.2009 Ext.P2 : COPY OF THE INSPECTION REPORT DATED 13.10.2009 Ext.P3 : COPY OF THE PENALITY NOTICE DATED 13.10.2009 ISSUED U/S.44(8) Ext.P4 : COPY OF THE MEDICAL CERTIFICATE DATED 07.10.2009 ISSUED TO THE PETITIONER BY HIS DOCTOR Ext.P5 : COPY OF THE REPLY DATED 14.10.2009 SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT Ext.P6 : COPY OF THE NOTICE DATED 15.10.2009 ISSUED TO THE PETITIONER BY THE IST RESPONDENT Ext.P7 : COPY OF THE REPLY DATED 29.10.2009 FILED BY THE PETITIONER BEFORE THE IST RESPONDENT Ext.P8 : COPY OF THE PENALTY ORDER DATED 02.11.2009 ISSUED BY THE IST RESPONDENT. // True Copy // PA to Judge. C.K.ABDUL REHIM, J. --------------------------------------------------- W.P.(C) No. 32990 OF 2009 ---------------------------------------------------- Dated this the 18th day of November, 2009 JUDGMENT 1. Writ petition is filed challenging Ext.P8 order issued under Section 44(8) & (10) of the Kerala Value Added Tax Act 2003 (KVAT Act) through which penalty to the tune of Rs.12,14,185/- was imposed on the petitioner. The penalty is imposed based on the allegation that during inspection it is revealed that the petitioner had stored goods in a premise which is not a declared godown. 2. Without going into merits of the matter, it is noticed that, from Ext.P8 order statutory appeal is provided under the KVAT Act. Therefore, I am of the opinion that the matter need not be entertained and adjudicated herein since the petitioner has not resorted to such remedies. W.P.(C) No. 32990 OF 2009 2 3. Learned counsel for the petitioner contended that the imposition of penalty is only based on the provisions under Section 44(10) of the KVAT Act, which says that “if on inspection it is found that goods are stored in undeclared godown, such stock shall be treated as stock out side the regular books of account of the dealer”. It is pointed out that a Division Bench of this Court in the judgment in Writ Appeal No.1300/2009 held as follows:- “As already stated, even though penalty under Section 44(8) read with Section 44(10) is mandatory, by virtue of the above referred discretionary powers conferred on the officer, a dealer is given opportunity to state emergency which led to his keeping the goods in undeclared godown without prior intimation and if he proves it and if such goods were found accounted, then the same should certainly be taken into account by the Inspecting Officer while levying penalty. In other words, by applying the fiction alone under Section 44(10), the officer cannot levy maximum penalty at half the value of the goods under Section 44(8), if the dealer proves the extreme circumstances that led to his storage of goods in undeclared godown and that the goods are accounted”. Therefore it is contended that imposition of penalty in W.P.(C) No. 32990 OF 2009 3 this case was totally unwarranted. 4. However, I am of the opinion that non consideration of the books of accounts, or the contentions based on the above quoted judgment, are all grounds which the petitioner is entitled to raise before the appellate authority. It could not be presumed that if any such grounds are raised, the appellate authority will not consider the same on its merits. Under the above circumstances, the writ petition is dismissed with out prejudice to rights of the petitioner to file statutory appeal against Ext.P8 before the appropriate authority. C.K.ABDUL REHIM, JUDGE SS