IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH MONDAY, THE 20TH OCTOBER 2008 / 28TH ASWINA 1930 WP(C).No. 29149 of 2008(T) -------------------------- PETITIONER(S): ---------------------- E.ABDUL RAFFIQ ABDUL RAHAMATHULLAH TRADERS, 111/24, KATHAMPOTTA, CHITTILANCHERRY, PALAKKAD DISTRICT. BY ADV. SRI.ARIKKAT VIJAYAN MENON SRI.HARISANKAR V. MENON RESPONDENT(S): ---------------------- 1. ASST. COMMISSIONER OF COMMERCIAL TAXES SPECIAL CIRCLE, PALAKKAD. 2. DEPUTY COMMISSIONER OF COMMERCIAL TAXES PALAKKAD. GOVERNMENT PLEADER SRI. C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - WP.(C) No.29149 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of October, 2008 JUDGMENT Prayer in the writ petition is to direct the first respondent to issue delivery notes in Form 15 prescribed under the VAT Act and Rules in book form after authenticating all leaves, by issue of writ of mandamus. 2. Case of the petitioner in brief is as follows: Petitioner deals in live chicken. Ext.P1 is the certificate of registration. Ext.P2 is the copy of the monthly return for August. Petitioner requires delivery notes. Delivery notes can be obtained from the assessing authority. It is provided in Rule 58 sub-rule 16 of the VAT Rules. It is mandatory. Petitioner submitted written application. It is not given. Ext.P4 is the order passed in another writ petition alleged to be in similar circumstances. 3. A counter affidavit is filed on behalf of the respondents, in which it is inter alia stated as follows: Petitioner does not own a farm. He is only a trader. He is in default of tax for the period upto 2004-2005 for an amount of Rs.1,65,31,920/- and for the periods 2005-2006 and 2006-2007 for an amount of Rs.1,60,92,378/-. Upon being advised for recovery, it was WPC.29149/2008. 2 returned on the ground that petitioner does not possess any property in Alathur Taluk for effecting recovery. It is also stated that inquiry conducted revealed that the business place of the petitioner could not be identified and accordingly it was decided that reasonable restrictions had to be imposed on the issue of delivery notes in bulk quantities to prevent further tax loss. Thereafter detailed inquiry was conducted by the first respondent to ascertain whether the petitioner holds a place of business, which as per the records is the declared place of business. In the inquiry one Sri.Ismail, who is the brother-in-law of the petitioner, was found to be running a grocery shop in the rooms in question . He deposed that petitioner ceased to carry out business in Room No.III/24 since one year and petitioner is an employee of the local cinema theatre at Mudapallur and he is not carrying on any business. It is also stated that at the declared place of business there was no trace of any live chicken business. Ext.R1(a) is the notice issued proposing to cancel the registration. Ext.P4 judgment is distinguished on facts as that relate to a bonafide dealer but not a case of benamidar. 4. Petitioner filed a reply affidavit denying the allegations. Ext.P5 is the objection to Ext.R1(a) notice. The demands are stated to be incorrect as they are arbitrary demands created illegally. It is stated that the petitioner's shop is above the room where Sri.Ismail runs his shop and there WPC.29149/2008. 3 is trade name also displayed and that chicken trade does not require the chicken to be brought to the place of business. 5. On the basis of the pleadings as they stand, it appears to me to be prima favie clear that the petitioner is not doing any business. He does not have any property. There are huge demands raised, which have been advised for recovery and merely characterising them as arbitrary and illegal, cannot detract from the finality it has attained. It is not as if petitioner is denied delivery form absolutely, but they are taking precautions, which I feel will be necessary in the interests of protecting the interests of the revenue. I see no merit in the writ petition and accordingly it is dismissed. (K.M. JOSEPH, JUDGE) sb