IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 3RD DECEMBER 2009 / 12TH AGRAHAYANA 1931 WP(C).No. 33355 of 2009() ------------------------- PETITIONER(S): --------------- P.V.VEERENDRANATH, PROPRIETOR, 'M/S. HOME STYLE', PANANGAD P.O., KODUNGALLUR, THRISSUR DISTRICT. BY ADV. SRI.P.N.DAMODARAN NAMBOODIRI RESPONDENT(S): --------------- 1. THE INTELLIGENCE OFFICER, SQUAD NO.III, DEPARTMENT OF COMMERCIAL TAXES, THRISSUR AT MINI CIVIL STATION, IRINJALAKUDA. 2. THE COMMERCIAL TAX OFFICER, DEPARTMENT OF COMMERCIAL TAXES, KODUNGALLUR, THRISSUR DISTRICT. 3. THE COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. BY GOVT. PLEADER SRI. V.K. SHAMSUDHEEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: shg/ C.K. ABDUL REHIM, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 33355 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of December, 2009 J U D G M E N T 1. Grievance of the petitioner is against Exts.P7 to P9 notices issued by the 1st respondent proposing to impose penalty under Section 44 (8) & (10) of the Kerala Value Added Tax Act, 2003 (KVAT Act). The impugned notices were issued on the basis of a shop inspection conducted. In the inspection report it was noticed that the petitioner had stocked goods at various places like, room situated under the business place, room situated on upstairs and at some other places within the same building itself. According to the petitioner those places from where the stock was recovered, are situated only within the entire building which was taken over by the petitioner on lease, on the basis of rental agreement executed. It is further stated that the petitioner had already filed request before the 2nd respondent as early as on 05.06.2009 to endorse W.P.(C)No. 33355 of 2009 -2- building numbers VIII/687, 688, 689 & 683 as their declared godown. Therefore contention of the petitioner is that the allegation of stocking of goods in undeclared premises is not factually correct. 2. On receipt of the impugned notices the petitioner submitted Ext.P10 letter requesting for issuing copies of the seized records for filing detailed reply. It is contented that eventhough the godwon from where the stock was detected is not included in the registration certificate, there was no undeclaration of such godown. It is further contended that the entire goods were duly accounted. Therefore it is contended that the case at hand is not one coming within the purview of Section 44 (10). 3. The petitioner further points out that a Division Bench of this court in W.A. No.1347/2009 (in the case of M/s. Far East Trading Establishment Vs. Intelligence Officer & Anr.) held that by virtue of Section 44 (10) the dealers are permitted to store goods even in undeclared godowns without getting amendment to the certificate of W.P.(C)No. 33355 of 2009 -3- registration, but by giving just prior intimation in writing to the registering authority. Therefore it is observed that the provision provides sufficient safeguards to the dealers who are stocking goods in premises other than the declared godown. In the said decision it is further held that, eventhough penalty under Section 44 (8) r/w. Section 44 (10) is mandatory, the authority can exercise discretionary power by giving opportunity to a dealer to state emergency which led to his keeping of the goods in undeclared godown, without prior intimation, and if he proves that such goods were properly accounted, then such facts should certainly be taken into account while levying penalty. Under such circumstances the petitioner is challenging the proposed action. 4. It is evident that the authority concerned has not finalise the proceedings imposing penalty. On the other hand the impugned notices are only proposals issued to the petitioner on the basis of the inspection. There is no reason to presume that the authority concerned will not consider W.P.(C)No. 33355 of 2009 -4- objections if any raised by the petitioner, enumerating contentions as stated above. It is evident from Ext.P10 that the petitioner had also made a request for return of the accounts. Learned counsel for the petitioner submitted that the seized records includes the computer systems wherein the accounts are kept. 5. The 1st respondent shall consider Ext.P10 request and shall permit the petitioner either to take the original records seized, on furnishing photocopies or if necessary the original can be kept in the custody of the respondent on issuing photocopies to the petitioner. So also it is only just and proper that the petitioner shall be permitted to take print out of the datas contained in the computer and retain the computer system in custody of the officer. 6. The petitioner shall be given adequate opportunity to submit detailed objections to the notices impugned and the same shall be finalised after affording reasonable opportunity of hearing. Needless to say that the 1st respondent shall take into consideration all the legal W.P.(C)No. 33355 of 2009 -5- contentions raised by the petitioner, especially in view of the directions contained in the judgment of this court cited above. The writ petition is disposed of with the above observations. C.K. ABDUL REHIM JUDGE shg/