IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 14TH MARCH 2008 / 24TH PHALGUNA 1929 WP(C).No. 8676 of 2008(G) ------------------------- PETITIONER: -------------- SOLAR CASHEWS, CUTCHERRY WARD, KOLLAM, REPRESENTED BY ITS MANAGING PARTNER, K.B.RAJEEV. BY ADV. SRI.P.B.SURESH KUMAR SRI.LEO GEORGE RESPONDENTS: ----------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. 3. THE DEPUTY COMMISSIONER OF COMMERCIAL TAXES, KOLLAM. 4. THE ASSISTANT COMMISSIONER, (ASSESSMENT) IV, COMMERCIAL TAXES, SPECIAL CIRCLE, KOLLAM. 5. THASILDAR, REVENUE RECOVERY, KOLLAM. BY GOVT.PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. =============== W.P.(C) NO. 8676 OF 2008 G ==================== Dated this the 14th day of March, 2008 J U D G M E N T The challenge in this writ petition is against Exts. P2, P4 and P5. 2. The subject matter of the writ petition relates to the inter state purchase made by the petitioner during the assessment year 1996- 97. Ext.P1 is the show cause notice that was issued proposing the levy of penalty under Section 45A of the KGST Act on the petitioner on the allegation that they have manipulated the records and made false claim of exemption to evade tax due to be paid. According to the petitioner, he has sought extension of time for filing his reply by submitting Ext.P1(a). 3. It is stated that despite making Ext.P1(a), without allowing the request for time made therein, Ext.P2 order was issued levying penalty of Rs.4,90,628/- on the petitioner. Here, it is to be noted that Ext.P2 does not show anywhere that Ext.P1(a) request for time was infact submitted by the petitioner. That apart, petitioner also has no document to indicate that Ext.P1(a) was infact served on the 4th respondent at any time before Ext.P2 order of penalty was issued by the 4th respondent. 4. Following Ext.P2, petitioner filed Ext.P3(a) revision and that was considered by the 3rd respondent and was rejected by Ext.P4 order. WPC 8676/08 :2 : Still aggrieved, petitioner filed a second revision before the 2nd respondent and that also has been rejected by Ext.P5. It is in this background that this writ petition has been filed challenging the aforesaid orders. 5. As I have already noticed, one of the complaint urged by the learned counsel for the writ petitioner is regarding the denial of the request for time sought for by the petitioner by submitting Ext.P1(a). I have already held that there is nothing to indicate that this request was infact made by the petitioner to the 4th respondent. In addition to that, I also notice that the denial of such an opportunity was not a ground that was urged by the petitioner in Ext.P3(a) revision resulting in Ext.P4 order or before the second respondent, who considered the second revision filed by the petitioner and rejected the same in Ext.P5. In such a case, I am not prepared to accept the plea now raised for the first time. Therefore, there is no substance in the contention raised by the petitioner regarding the alleged denial of opportunity sought for by Ext.P1(a). 6. Yet another contention raised by the petitioner is that Ext.P1 show cause notice is based on an unilateral enquiry that was conducted by the 1st respondent and that the said unilateral enquiry could not have been the basis for the levy of penalty. I am not in a position to accept this WPC 8676/08 :3 : contention raised by the petitioner either. The reason for such conclusion is that on the material now available before me, I am not in a position to conclude that the petitioner had sought any opportunity to file any objection to the show cause notice, in which reliance is placed in the material collected in the enquiry. If that be so, the petitioner did not dispute the correctness of the evidence collected in the unilateral enquiry stated to have been conducted by the 4th respondent. In such a case, there is nothing wrong in relying on the material collected by the 4th respondent in the enquiry that was conducted by him. 7. Even otherwise, once material is collected by the 4th respondent in an enquiry that was conducted by him, natural justice only requires that a show cause notice should be given to the person affected. In this case, in compliance with the principles of natural justice, Ext.P1 show cause notice has been given and if the petitioner did not avail of the opportunity so extended to him by filing his reply disputing the correctness of the allegations that were raised, it is not open to the petitioner to dispute the same at a later point of time. Therefore, there is no merit in this contention as well. 8. On facts also, I do not find any irregularity in the action that WPC 8676/08 :4 : has been taken. The first revisional authority in Ext.P4 order refers to the enquiry conducted by the assessing authority which revealed that the alleged interstate purchase of rawnuts of 18 loads in April, 1996 has not passed through Checkpost at Aryancavu and that the records produced were fabricated. It is also stated that the first revisional authority had on verification of the connected records confirmed the findings of the 4th respondent and it is also stated that the records were manipulated and the petitioner did not produce used delivery notes before the first revisional authority. These factual conclusions have been upheld by the 2nd respondent also in Ext.P5, rejecting the revision against Ext.P4. 9. In these circumstances, I see no justification to interfere with Ext.P2, concurrently confirmed by the revisional authorities in Exts. P4 and P5. Writ petition fails and is dismissed. ANTONY DOMINIC,JUDGE. Rp