IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 15TH OCTOBER 2008 / 23RD ASWINA 1930 WP(C).No. 29059 of 2008(H) ----------------------------------------------- PETITIONER: ----------------- M/S AISWARYA ENTERPRISES, PANDANKARY, EDATHUA, ALAPPUZHA DISTRICT, REPRESENTED BY K.PRABHAKARAN NAIR, MANAGING PARTNER. BY ADV. SRI.ARIKKAT VIJAYAN MENON SRI.HARISANKAR V. MENON SMT.MEERA V.MENON SRI.MAHESH V.MENON RESPONDENT(S): ------------------------- 1. INTELLIGENCE OFFICER (IB), DEPT. OF COMMERCIAL TAXES, ALAPPUZHA. 2. DEPUTY COMMISSIONER OF COMMERCIAL TAXES, ALAPPUZHA. 3. DEPUTY TAHSILDAR (REVENUE RECOVERY), KUTTANAD TALUK OFFICE, MONCOMPU. BY GOVERNMENT PLEADER SHRI C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 29059 OF 2008 H -------------------------------------- Dated this the 15th October, 2008 JUDGMENT Petitioner challenges Ext.P18. Ext.P18 is an order passed by the second respondent Deputy Commissioner, rejecting the Revision Petitions filed by the petitioner against the order of penalty passed by the first respondent, Intelligence Officer (Investigation Branch), Alappuzha. 2. I heard Shri Harisankar V. Menon, learned counsel appearing for the petitioner and also the learned Government Pleader. Briefly put, the case of the petitioner is as follows: M/s. Tata Chemicals Ltd. has sold various items to various parties in the State of Kerala. The role of the petitioner is confined to taking delivery of the goods from the Cochin Port and arranging for the transport of the same to the respective purchasers from M/s. Tata Chemicals Ltd. Petitioner gets what it calls as handling and transporting charges. However, the first respondent Intelligence Officer, treating the transactions WPC.29059/08 H 2 essentially as sale exigible to tax under the KGST Act being the first sale within the State and on the basis that these transactions were not included in the Returns of the petitioner, proceeded to levy penalty. Learned counsel for petitioner points out that Ext.P18 order is vitiated. He would submit that when the petitioner had approached this Court earlier, this Court had directed the Intelligence Officer to conductan enquiry and submit a Report. A Report has been submitted. He would contend that a perusal of the contents of the Report would bear out the petitioner in its contention that there was no sale effected by the petitioner as contended by the respondents, and the sale was effected directly by M/s. Tata Chemicals Ltd. to various customers. He would complain that there is no reference in Ext.P18 to the Report of the Intelligence Officer. This is an important material as investigation was done by the Intelligence Officer as directed by this Court with notice to the various customers, he contends. He has reported, according to petitioner, that there were direct sales by M/s. Tata Chemicals WPC.29059/08 H 3 Ltd. in many cases, the sales were so accounted and tax has already been paid on the said basis. 3. Per contra, learned Government Pleader supports the order and he would submit that Ext.P18 is a well considered order. 4. There is no dispute that the petitioner has a remedy under the Statute. I feel that in the facts of this case, this is not a matter which need detain this Court, and the petitioner is to be relegated to the pursuit of the alternate remedy. Accordingly, the Writ Petition is disposed of relegating the petitioner to pursue the alternate remedy available under the Statute. Counsel for petitioner submits that the petitioner will move the statutory authority within a period of two weeks from today. In the facts and circumstances of this case, it is ordered that if the petitioner moves the statutory authority within two weeks from today, there will be no recovery pursuant to the order till the matter is finally disposed of, with opportunity of hearing to the petitioner. The statutory authority will take a decision in the matter in WPC.29059/08 H 4 accordance with law, within a period of three months from the date on which it is moved by the petitioner as aforesaid. The statutory authority will also take note of Ext.P15 Report of the Intelligence Officer when he decides the matter. Sd/= K. M. JOSEPH, JUDGE kbk. // True Copy // PS to Judge