IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 2ND NOVEMBER 2009 / 11TH KARTHIKA 1931 WP(C).No. 27075 of 2009(D) ---------------------------------- PETITIONER(S): ------------------------ M.MOHAMMED SAKKARIA, SHAJAHAN TRADERS, M.PUDUR, GOVINDAPURAM, PALAKKAD DISTRICT. BY ADV. MR.HARI SANKAR V MENON RESPONDENT(S): ------------------------ 1. COMMERCIAL TAX OFFICER, CHITTUR, PALAKKAD DISTRICT. 2. OFFICER-IN-CHARGE, SALES TAX CHECK POST, ARYANKAVU, KOLLAM DISTRICT. 3. COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. BY SPL. GOVT. PLEADER MR.K.VINOD CHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.27075 OF 2009 ------------------------------ Dated this the 2nd day of November, 2009 J U D G M E N T ---------------------- 1. Petitioner is a registered dealer, trading in live chicken, paddy, rice, etc: having his place of business at Govindapuram, Palakkad. Petitioner is also having a branch at Thenmala in Kollam District. Petitioner claims to be dealing in transactions from that branch also. Grievance of the petitioner is that from 20.9.09 onwards the sales tax officials at the border check post at 'Aryankavu' are not permitting the petitioner to transport live chicken through that check post, without there being any valid reason. Petitioner contends that any registered dealer within the State is entitled to effect transportation of any commodity interstate through any of the border check post and the only requirement is that such transport should be accompanied by valid documents as prescribed under the statute. Therefore the restriction imposed on the petitioner for transport through any one of the check posts without assigning any valid reason cannot be sustained. However the petitioner had submitted a representation to the 3rd respondent in this regard as evidenced by Ext.P2 and since there was no action the W.P.(C).27075/09-D 2 writ petition is filed. 2. In the statement filed on behalf of the respondents serious allegations are raised against the petitioner with respect to various business transactions undertaken by him, misutilising the branch registration granted at Thenmala. Allegation of the respondents is that the petitioner is unauthorisedly selling delivery notes from a rented shop near to the border check post at 'Aryankavu'. It is alleged that the delivery note of the petitioner is being sold to various transporters of live chicken, through agents namely, M/s. Girish and Shiju. There is a detailed narration of the offences detected by the Inspecting Assistant Commissioner (Intelligence), Kollam, on the night of 4.7.09. It is stated therein that on inspection of vehicle No:KL- 02/AB-3472 the authorities found that the quantity of chicken transported had considerably varied with the actual quantity under transport. On the basis of physical verification and counting of the number of chicken transported, additional security deposit and Advance Tax was demanded, which was remitted without any protest by the person in charge of the vehicle. On the same night the Intelligence Assistant Commissioner and his team had found out two other vehicles transporting chicken with documents supplied by the petitioner, at a place near to the check post at 'Aryankavu'. On inspection W.P.(C).27075/09-D 3 the person namely, Sri:Dipinkumar who was in charge of transportation, made an attempt to escape from the scene by turning around the vehicle and plying it towards the Tamilnadu side. Subsequently on issuing notice proposing penalty the goods were brought back and amount of security deposit and Advance Tax were collected. With respect to another vehicle also considerable difference in weight was detected and security deposit and Advance Tax was collected for the differential quantity. It is stated by the respondents that manipulations in the documents like delivery note is also being practiced by the petitioner with deliberate intention to remit lesser Advance Tax and thereby practicing suppression of turnover. All these malpractices are being perpetuated at the Commercial Sales Tax Check Post at 'Aryankavu', misutilising the opportunity that the check post is not provided with weighment facility. 3. It is revealed from the above said evidences that the delivery notes issued to the petitioner is being widely misused under the guise of the branch registration at 'Thenmala'. The authorities concerned has recorded depositions of Sri.Dipinkumar who is allegedly an agent of the petitioner, who had conceded that the delivery note is being sold each at the rate of Rs.500/- and even the triplicate copy is seen issued to the purchasers and therefore it is reasonably suspected that there is W.P.(C).27075/09-D 4 possibility of the dealer suppressing the turnover. Under the above circumstances the authority had already initiated proceedings for cancellation of the branch registration of the petitioner at 'Thenmala' and on further enquiry it is revealed that there is no branch office functioning, though he had obtained a branch registration. It is stated that the restrainment put on the petitioner with respect to transport of live chicken through a commercial check post at 'Aryankavu' is under the above mentioned circumstances and it is intended only to protect possible loss to the revenue and to curtail misuse of statutory forms which is being practiced by the petitioner widely, as detected by the Intelligence Wing on more than one occasion. 4. On the legal aspects of the issue, there may be justification on the part of the petitioner raising a ground that the restrainment for transport of goods through a particular check post alone is not justifiable, as long as the petitioner remains a registered dealer and as long as such transports are accompanied by such documents required. But in the case at hand it is revealed that the authorities have detected serious malpractice on the part of the petitioner and further the authorities had taken steps for cancellation of his branch registration. Because of the particular circumstances that the check post in question is not provided with facility for W.P.(C).27075/09-D 5 weighment, the authority concerned had restrained the petitioner from effecting transport through that check post, in view of detection of various malpractices and in view of the fact that steps have already been initiated for cancellation of branch registration. 5. From the facts and circumstances revealed through the statement of the respondents, I am of the view that this court is not justified in exercising the discretionary jurisdiction vested under Article 226 in order to provide any facility to the petitioner to perpetuate such malpractices again. Therefore without going into merits of the contentions raised by the petitioner, I am declining to exercise the discretionary jurisdiction in favour of the petitioner. The writ petition is accordingly dismissed. 6. It is made clear that none of the observations made in this judgment shall be taken as conclusions or findings on facts of the matter in any of the proceedings which may be initiated against the petitioner by the authorities in the Department. C.K.ABDUL REHIM, JUDGE. okb