IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 11TH NOVEMBER 2011 / 20TH KARTHIKA 1933 WP(C).No. 29741 of 2011(P) ------------------------------------ PETITIONER(S): ---------------------- M/S.MANNAMTHARA TILE HOUSE, EAST NADA, KODUNGALLOOR, THRISSUR-680 664, REPRESENTED BY ITS MANAGING PARTNER M.A.SALAM. BY ADV. SRI.P.N.DAMODARAN NAMBOODIRI RESPONDENT(S): ----------------------- 1. THE INTELLIGENCE OFFICER (IB), COMMERCIAL TAXES, THRISSUR-680004. 2. INSPECTING ASSISTANT COMMISSIONER (IB), DEPARTMENT OF COMMERCIAL TAXES, PALAKKAD-680 004. 3. THE COMMERCIAL TAX OFFICER, DEPARTMENT OF COMMERCIAL TAXES, KODUNGALOOR - 680 664. BY GOVT. PLEADER SRI.MANOJ.P.KUNJACHAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: STU WP(C).No. 29741 of 2011(P) APPENDIX PETITIONER(S) EXHIBITS : EXHIBIT P1: TRUE COPY OF THE RECEIPT DATED 11-7-2011 EVIDENCING SEIZURE OF RECOREDS AND BOOKS OF ACCOUNTS. EXHIBIT P2: TRUE COPY OF THE NOTICE NO.IBD 12/2011-12 DATED 21-10-2011 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXHIBIT P3: TRUE COPY OF THE REQUEST DATED 29-10-2011 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. RESPONDENTS' EXHIBITS : NIL //TRUE COPY// P.A TO JUDGE. STU S.SIRI JAGAN, J. ================== W.P.(C).No. 29741 of 2011 ================== Dated this the 11th day of November, 2011 J U D G M E N T The petitioner is an assessee under the Kerala Value Added Tax Act, on the files of the 3rd respondent. The 1st respondent directed the petitioner to produce books of accounts. The petitioner produced the same. Now the petitioner has been served with Ext.P2 notice by the 1st respondent directing the petitioner to show cause why penalty should not be imposed on the petitioner for the discrepancies in the account books. The petitioner's grievance is that the petitioner is not in a position to file reply to Ext.P2 notice without getting back the books of accounts. According to him, there is no seizure of the records as such. The petitioner has been asked to produce books of accounts, which have been produced and Ext.P1 acknowledgment has been given also. Without any proceedings for seizure, the 1st respondent cannot retain the records under law. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “(i) to issue a writ in the nature of mandamus or any other appropriate writ or order directing the 1st respondent to release the records seized as per Ext.P1 receipt to the petitioner forthwith; (ii) to issue a writ in the nature of mandamus or any other appropriate writ or order directing the 1st respondent to consider and pass orders in the representation submitted by the petitioner before him on 29.10.2011 within a time limit fixed by this Hon'ble Court; (iii) to issue a writ in the nature of mandamus or any other w.p.c.29741/11 - : 2 :- appropriate writ or order to the 1st respondent to release the books of accounts and relevant records within time fixed by this Court and grant reasonable time to file a proper and fair reply after return the books of accounts and relevant records, till such time further proceedings on Ext.P2 may be stayed.” 2. The learned Government Pleader, on instructions, submits that the petitioner has been given a notice directing him to take back the records and resubmit the same within three days. It would be open to the petitioner to file objections pursuant to Ext.P2 after perusing the records, is the contention raised by the learned Government Pleader. 3. I have heard the learned Government Pleader also. 4. The learned Government Pleader could not bring to my attention any provision of law whereby the 1st respondent is empowered to retain the records, which the petitioner has produced as acknowledged by Ext.P1 receipt without seizing the same. The apprehension of the 1st respondent is that since the penalty proceedings are based on the discrepancies in the account books, there is every likelihood of the petitioner tampering with the account books, if returned, which would prejudicially affect the proceedings initiated by Ext.P2. I am of opinion that that is not a ground to retain the account books insofar as the 1st respondent could not satisfy me that legally he is empowered to retain the same. If the apprehension of the 1st respondent is of tampering, it would be open to the 1st w.p.c.29741/11 - : 3 :- respondent to retain photocopies of the whole of the account books or relevant pages of the same so that if any tampering is made subsequently, the same can be easily verified. As such, I am of opinion that unless the 1st respondent intends to proceed to seize the account books, the petitioner cannot be required to resubmit the account books. In the above circumstances, this writ petition is disposed of with the following directions: The 1st respondent shall return the records submitted by the petitioner as evidenced by Ext.P1 within ten days. The petitioner shall be given two weeks' time from the date of return of the records to enable the petitioner to file a reply. Thereafter, the petitioner shall be afforded and opportunity of being heard before passing final orders pursuant to Ext.P2. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge