IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 29TH JULY 2010 / 7TH SRAVANA 1932 WP(C).No. 19438 of 2010(D) --------------------------------------- PETITIONER: ------------------- M/S.MALABAR HOSPITALS (P) LTD., RAJIV GANDHI BY-PASS ROAD, KARUVAMBRAM P.O, MANJERI, MALAPPURAM DIST., REPRESENTED BY S.REGHUNATHAN NAIR, ADMINISTRATIVE OFFICER. BY ADVS. SRI.M.AJAY, SRI. HARISANKAR V. MENON, SMT. MEERA V. MENON. RESPONDENTS: ------------------------ 1. COMMERCIAL TAX OFFICER, MANJERI. 2. INTELLIGENCE OFFICER (IB) DEPARTMENT OF COMMERCIAL TAXES, MALAPPURAM. 3. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TAXES DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. R1 TO R3 BY SR. GOVERNMENT PLEADER SRI. C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P. R. RAMACHANDRA MENON, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= W.P.(C) No. 19438 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 29th day of July, 2010 JUDGMENT Petitioner Company, a Hospital, represented by its Administrative Officer one S. Reghunathan Nair who had preferred Ext.P1 application for granting registration under the Kerala Value Added Tax Act as early as in 2005, is stated as aggrieved in granting registration only with effect from 29-5-2010. Hence, the petitioner seeks a direction to the respondents, to grant registration with effect from the date of Ext.P1 application. 2. With regard to the sequence of events, Ext.P1 application for registration was submitted on 5-10-2005, which is stated as responded by the concerned respondent by issuing Ext.P2 only on 2-5-2008, calling for certain particulars. On receipt of Ext.P2, it is contended that the petitioner submitted all the requisite materials as shown in Ext.P3 dated 4-6-2008. In the meanwhile, the Intelligence W.P.(C) No. 19438/2010 2 Wing, represented by the second respondent conducted a search in the hospital in May, 2010 and based on the incriminating circumstances, further proceedings were sought to be pursued against the petitioner, mainly for having no registration. It is the case of the petitioner that the petitioner approached respondents 1 and 2 and enquired about Ext.P1, when it was advised to file a fresh application for registration, assuring that the same will be considered and registration will be granted with prior date. On the basis of the said assurance, the petitioner submitted a fresh application, as borne by Ext.P4, which led to issuance of Ext.P5 Certificate of registration with effect from 27-5-2010. While so, Ext.P6 notice was issued by the second respondent, proposing to impose a penalty, against which the petitioner has approached this Court praying for appropriate reliefs. 3. The first respondent has filed a statement, refuting the averments and allegations raised in the writ petition, stating that the petitioner has chosen to approach this W.P.(C) No. 19438/2010 3 Court without any sense of bona fides and rather raising wilful misrepresentation with intend to misled this Court. It is also stated that the petitioner, in fact, had preferred Ext.P1 application for registration, on receipt of which, a notice was issued on 17-7-2006 requesting the petitioner to produce a 'notarized affidavit' in stamp paper worth Rs.100/-, which was supposed to be filed along with the application for registration. The said notice, which is produced as Ext.R1(a), was never responded to, from the part of the petitioner. The first respondent issued yet another notice on 4-10-2007, asking the petitioner to produce the books of accounts of the business, so as to process the application for granting registration. The said notice is produced and marked as Ext.R1(b). The petitioner submitted Ext.R1(c) reply dated 16-10-2007 stating that documents required would be produced shortly. However, the documents were not produced for verification. It was in the said circumstances, the first respondent issued further notice dated 2-5-2008 produced and marked as Ext.R1(d) W.P.(C) No. 19438/2010 4 (same as Ext.P2 produced by the petitioner), calling upon the petitioner to file documents as specified therein (19 items). 4. The above notice in fact was served on S.Raghunathan Nair, Administrative Officer, Malabar Hospitals (P) Ltd. (who has filed this writ petition) on 3.6.2008. In spite of the service of notice, nothing transpired in the positive from the part of the petitioner and in the said circumstances, the proceedings were finalized and Ext.P1 application was rejected, as per Annexure-R1(e) order dated 11-6-2008. This was also served on the very same person by name S.Raghunathan Nair, the Administrative Officer of the petitioner Company on 22-6-2008, as borne by the endorsement made on Annexure R1(e). It is contended that the petitioner has chosen to approach this Court suppressing all these vital facts, but stating that Ext.P1 application was responded only in May, 2008, that the petitioner was made to file a fresh application, however, granting the registration only W.P.(C) No. 19438/2010 5 from 27.05.2010, instead of granting the same with effect form the date of Ext.P1 application. 5. The learned Government Pleader submits that the rejection of Ext.P1 application vide Ext.R1(e) has become final and same has not been challenged. Further, the petitioner choses to file a fresh application vide Ext.P4, and after considering the credentials, Ext.P5 Certificate of Registration has been granted with effect from the date of the said application; ie., 27.5.2010. Steps taken by the respondent granting registration are stated as in conformity with the statutory requirements, particularly under section 20(1) of the KVAT Act. It is also brought to the notice of this Court that, by virtue of the mandate under section 28 of the KVAT Act, the petitioner had to file the monthly and annual returns disclosing the details of business activities, whether or not he was a registered dealer,which has not been done. This being the position, no interference is warranted, submits the learned Government Pleader . 6. Mr. M. Ajay, the learned counsel appearing for the W.P.(C) No. 19438/2010 6 petitioner submits with reference to the reply affidavit dated 20-7-2010 sworn to by the 'Managing Director' of the petitioner Company, that the writ petition happened to be filed by the Administrative Officer by name S. Raghunathan Nair on totally wrong and misconceived facts. It is the case of the 'Managing Director' that the person by name S.Raghunathan Nair who was the Administrative Officer and was authorized to file the Writ Petition, had not brought to the notice of the Managing Director or any other Directors of the Board of the petitioner Company as to Ext.R1(e) order rejecting Ext.P1 application for registration. It is stated that the petitioner Company has issued Ext.P7 'show-cause notice' to the Administrative Officer on 12-7-2010, who in turn has submitted Ext.P8 reply on 15-7-2010, pleading ignorance or rather regretting his deplorable level of memory. It is also stated in the reply affidavit that the explanation offered by the delinquent Officer in Ext.P8 is not acceptable and hence, appropriate action is being initiated by way of disciplinary proceedings. W.P.(C) No. 19438/2010 7 With regard to the merits, reliance is sought be placed on Exts.P9 and P10 Circulars, stating that petitioner is entitled to have the benefit of registration with effect from the date of submission of Ext.P1 application. 7. The version put forward by the 'Managing Director' of the petitioner Company in the reply affidavit or the submissions made by the learned counsel with reference to the said reply affidavit do not inspire confidence of this Court. Fact remains that the petitioner Company, registered under the relevant provisions of the Indian the relevant provisions of the Indian Companies Act, 1956 is a legal entity of its own and was sought to be represented before this Court through the Administrative Officer who has stated as authorized and who in turn subscribed his signature affixed the seal of the Company to the proceedings, including the affidavit filed in support of the writ petition. The 'Managing Director' of the Company who was nowhere in the picture, has now come up with a reply affidavit contending that the facts as put forth by the W.P.(C) No. 19438/2010 8 executant/signatory are wrong and steps are being taken against the concerned person by way of disciplinary proceedings; which is purely an internal affair and it can't mitigate the course resorted to, by the Company in causing the Writ Petition to be filed suppressing material facts. This Courts finds, based on the materials on record, that the averments raised in the writ petition as well as the affidavit filed in support of the writ petition are contrary to the actual facts and figures. In the above circumstances, interference is declined and the Writ Petition is dismissed with cost of Rs.10,000/-. Registry shall forward a copy of this judgment to the Principal Secretary, Department of Revenue and Finance, Government of Kerala, Thiruvananthapuram so as to ensure that the cost is realized. P. R. RAMACHANDRA MENON, JUDGE. mn.