IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH TUESDAY, THE 16TH SEPTEMBER 2008 / 25TH BHADRA 1930 WP(C).No. 26857 of 2008(V) ---------------------------------------------- PETITIONER: ------------------ M/S.J & J TIMBERS, 23/418, MAIN ROAD, CHALAKUDY-REPRESENTED BY ITS MANAGING PARTNER, SHRI.C.D JOSEPH. BY ADV. SRI.T.M.SREEDHARAN SRI.K.I.MAYANKUTTY MATHER SMT.C.K.SHERIN SRI.V.P.NARAYANAN RESPONDENTS: ----------------------- 1. THE INTELLIGENCE OFFICER (IB) INVESTIGATION BRANCH, DEPARTMENT OF COMMERCIAL TAXES, KOLLAM 691 009. 2. THE ASSISTANT COMMISSIONER (ASSMT.) SPECIAL CIRCLE, COMMERCIAL TAXES, THRISSUR. 3. THE COMMISSIONER OF COMMERCIAL TAXES, PUBLIC OFFICE BUILDINGS, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-35. BY GOVERNMENT PLEADER SHRI C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 26857 OF 2008 V -------------------------------------- Dated this the 16th September, 2008 JUDGMENT Petitioner challenges Exts.P4 and P7 and seeks a direction to the first respondent to advert to various grounds urged by the petitioner in replies dated 1.9.2008 (Ext.P6) and 28.8.2008 (Ext.P5) and afford the petitioner adequate opportunity to substantiate its contentions. A further direction is sought to the first respondent to absolve the petitioner from the duty to produce the third parties for cross examination before him on 9th September, 2008 as per Ext.P7. 2. Petitioner is faced with proceedings for imposition of penalty on it. Apparently, the case of the Department is that there is a misuse of Form 18 Declaration. Petitioner had approached this Court earlier and the last of the Writ Petitions culminated in Ext.P2. Thereafter, Ext.P4 was issued on 19.8.2008. About Ext.P4, it is stated that, the Officer mis- interpreting the orders of this Court, has proceeded to observe WPC. 26857/08 V 2 that the Court adjudicated the issue to the effect that the assessment orders of the purchasing dealers are not relevant in the issue and they are not documents relied on penalty proceedings by the Department. Thereafter, petitioner has filed Exts.P5 and P6 replies. Thereafter again, Ext.P7 notice is issued. Apparently, Ext.P7 is issued after reference is made to Ext.P5 reply. Reference is also made to the relevance of Pay-in- slips relating to money deposit by the customers in their Bank Accounts. Thereafter, it is inter alia stated as follows: "However, considering your request, summonses are being sent to all of them whose evidences relating to bank transactions are relied upon from this office for your cross- examination at 11.00 AM on 09/09/2008. You are also given the liberty to bring them for cross examination at 11.00 AM on 09/09/2008, since they are proved to be your good customer and trustworthy people even as per your records. If you desire, you may also bring your staff who prepared returns and other documents as well as the form 18 declarations of the form 18 WPC. 26857/08 V 3 suppliers also for cross examination at 11.00 AM on 09/09/2008. You are also granted time upto 11.00 AM on 09/09/2008 for filing your reply to the notice. A set of legible copies of documents 1 to 140 is also enclosed as requested by you." 3. I heard the learned counsel for the petitioner and the learned Government Pleader. Petitioner addressed three complaints before me: Firstly, it is contended that Ext.P4 will show a mis-apprehension of Ext.P2 Judgment by the Officer. According to him, this Court had never held that the assessment orders are not relevant. He further contended that Section 53 of the KGST Act empowers the Officer to enforce attendance of witness and it is not proper to call upon the petitioner to prove the case in a matter relating to penalty. Burden is on the Department, he contends. Lastly, he would contend that 140 pay-in-slips were forwarded to the petitioner by Ext.P7. Ext.P7 is dated 1.9.2008 and the petitioner is given time till 9.9.2008 and he submits that the time is hardly sufficient having regard to WPC. 26857/08 V 4 the volume of the documents. Learned Government Pleader points out that this is a matter pending from 2006 and on one or other way the matter is being adjourned and this is the 7th Writ Petition filed. 4. Section 53 of the KGST Act undoubtedly provides power to summon witnesses and cause production of documents which powers are conferred on a Court by the Code of Civil Procedure. It is specifically provided that it was available to a Court for summoning and enforcing attendance of any person and examining him or affirmation is available to the assessing authority. I need only say that there is authority with the assessing authority, such powers as are conferred on it under Section 53 of the KGST Act. I also feel that a month's time can be granted in the matter. Accordingly, it is directed that the proceedings pursuant to Ext.P7 shall stand deferred for a period of one month from today so as to disabuse the petitioner of the feeling that he was not given sufficient opportunity to defend the case. I am sure that the Officer will consider all the WPC. 26857/08 V 5 objections of the petitioner including his contention based on the true scope of Ext.P2 Judgment. The Writ Petition is disposed of as above. Sd/= K. M. JOSEPH, JUDGE kbk. // True copy// PS to Judge