IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 18TH JUNE 2008 / 28TH JYAISHTA 1930 WP(C).No. 15984 of 2008(C) ----------------------------------------------- PETITIONER: ------------------ M/S VARUN AGRO, VI/1036A, SHAN COMPLEX, BAZAR ROAD, MATTANCHERRY, KOCHI 682002. REP: BY THE PARTNER KUSUM AJIT THAKER. BY ADV. SRI.C.K.THANU PILLAI RESPONDENTS: ---------------------- 1. THE COMMISSIONER OF COMMERCIAL TAX PUBLIC OFFICE BUILDINGS, THIRUVANANTHAPURAM-695033. 2. THE DEPUTY COMMISSIONER, COMMERCIAL TAXES, MATTANCHERRY. 3. THE INTELLIGENCE OFFICER, SQUAD NO.II, COMMERCIAL TAXES, ERNAKULAM. 4. THE ASSISTANT COMMISSIONER (ASSESSMENT), SPECIAL CIRCLE (PRODUCE), MATTANCHERRY. BY GOVERNMENT PLEADER SHRI C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 15984 OF 2008 C -------------------------------------- Dated this the 18th June, 2008 JUDGMENT Petitioner challenges Ext.P7. By Ext.P7, the Commissioner of Commercial Taxes has set aside the order passed by the Deputy Commissioner of Commercial Taxes and remanded the matter to the Intelligence Officer, Squad No.II, Ernakulam for de novo disposal after verifying the facts. 2. Briefly put, the case of the petitioner is as follows: A notice was issued proposing penalty against the petitioner to which though objections were filed, penalty was imposed by the third respondent. It came to be set aside by the second respondent. It is the said order which was set aside by the Commissioner of Commercial Taxes and remanded. Petitioner is a partnership firm carrying on business in hill produces at Mattanchery. Certain records were seized on an inspection on 8.6.1999 and after examination of the Accounts of the petitioner, the third respondent alleged that WPC. 15984/08 C 2 the petitioner sold pepper for Rs.1,48,72,360/= to M/s. Varun Impex Ltd., another registered dealer housed in the same premises. It is the case of the Department that this was not accounted and thus penalty followed. According to petitioner, no sale took place on that day and there was no sale of the goods and there was no evasion. It is, in fact, the case of the petitioner that due to non-arrival of goods, there was no sale. Bills were prepared and cancelled, as the sale did not materialise on that day and delivery could not be made due to non-arrival of the goods, is the petitioner's case. The first respondent Commissioner found in his order that the Revisional Authority has not verified various aspects while disposing of the Revision Petition. In the course of the order, the Commissioner while setting aside the order and remanding the matter for de novo consideration after verifying the aforesaid facts, made certain observations. It is, inter alia, found that the argument of the petitioner that the assessment for the relevant period was completed, has no significance, as the last bill used by the WPC. 15984/08 C 3 petitioner is Bill No.401 dated 31.3.1999, which was not produced before the assessing authority for verifying the Books of Account. There is no attestation found by the assessing authority and it is, therefore, clear that the petitioner intentionally avoided production of the bills before the assessing authority, it is stated. It is the case of the petitioner that it is not correct. It is also stated that the original is seen detached from the bill book itself and no inscription is found cancelled in the duplicate copy. He has also made reference to certain other observations. 3. Since the matter is being remitted back for de novo consideration, I think that the matter should be considered untrammelled by the observations contained in Ext.P7. Accordingly, while sustaining Ext.P7, it is ordered that when the assessing authority takes up the matter after remand for verification of the various aspects which was ordered, the assessing authority will take a decision in accordance with law, WPC. 15984/08 C 4 untrammelled by the observations contained in Ext.P7. I leave open the contentions of the petitioner. The Writ Petition is disposed of as above. Sd/= K. M. JOSEPH, JUDGE kbk. // True Copy// PS to Judge