IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 11TH MARCH 2009 / 20TH PHALGUNA 1930 WP(C).No. 7182 of 2009(P) ------------------------------------ PETITIONER(S): --------------------- K.M.ABOOBACKER, PROPRIETOR M/S. K.S.M. PLY WOODS, PERUMPUZHA PO KERALAPURAM, KOLLAM DISTRICT. BY ADV. SRI.BOBBY JOHN SRI.P.N.DAMODARAN NAMBOODIRI RESPONDENT(S): ------------------------- 1. THE COMMERCIAL TAX OFFICER, KUNDARA. 2. THE INTELLINGENCE OFFICER, SQUAD III COMMERCIAL TAXES, KOLLAM. 3. THE DEPUTY COMMISSIONER (APPEALS) COMMERCIAL TAXES, KOLLAM. 4. THE COMMISSIONER OF COMMERCIAL TAXES THIRUVANANTHAPURAM. 5. INSPECTING ASSISTANT COMMISSIONER (INT) COMMERCIAL TAXES ,KOLLAM. BY GOVERNMENT PLEADER SRI.C.K.GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH, J. ------------------------------------------------------ W.P.(C) No. 7182 of 2009-P ---------------------------------------------- Dated, this the 11th day of March, 2009 J U D G M E N T Petitioner has approached this court on the following brief allegations. Petitioner is running a proprietary concern engaged in the manufacture of Veeners, packing cases etc. Petitioner submitted application for registration under the Kerala Value Added Tax Act and Central Sales Tax Act and National Savings Certificate for Rs.15,000/- as security was given. On 30.8.2008 the 5th respondent conducted an inspection in the business place of the petitioner and certain documents were seized. Penalty notice was issued under Section 67(1) alleging failure to file returns. Petitioner filed reply. It is pointed out that monthly returns for the months of July, August and September are being filed, but penalty order was passed. Petitioner was issued Ext.P10 notice calling upon to pay Rs.20 lakhs as cash security. It is stated that he received notice under Section 25 of the Kerala Value Added Tax Act proposing completion of assessment for the period from 8.7.2008 to 29.8.2008 on best judgment basis. It is stated that there is a refusal to accept the monthly WPC No.7182/2009 -2- return for the months of December, 2008 and January 2009 on the ground that 'e'-return only can be accepted from 1.1.2009. 2. I heard learned counsel for the petitioner and learned Government Pleader. Learned counsel for the petitioner points out that the demand for cash security in Ext.P10 is against Rule 19 (2) of the KVAT Rules. I notice that Ext.P10 is only a notice. Petitioner has already filed Ext.P11. It is certainly open to the petitioner to urge all his contentions including the mandate of Rule 19 (2) of the KVAT Rule before the officer who has issued Ext.P10. The said officer will take a decision in the matter after affording an opportunity of being heard to the petitioner. So far as the question of filing 'e'-return is concerned learned Government Pleader submits that in so far as petitioner is not a registered dealer it is open to the petitioner to file manual return. According to the petitioner he has filed it, but it is not accepted. 3. In such circumstances, there will be a direction to the first respondent to accept the manual returns which are WPC No.7182/2009 -3- filed by the petitioner. Learned Government Pleader points out that the stay application is posted to 13.3.2009. There will be a direction to pass orders on the said application in accordance with law within a period of ten days from 13.3.2009. Till such a decision is taken proceedings pursuant to Ext.P6 will be kept in abeyance. Learned counsel for the petitioner submits that in the inspection conducted on 30.8.2008 certain records were seized without giving any receipts. If the petitioner has a legal grievance he may make a representation before the 5th respondent who is alleged to have seized the records on 30.8.2008, and, upon the representation being filed before the 5th respondent, the 5th respondent will consider and take a decision in regard to the matter within two weeks from the date of filing of the representation. Petitioner will produce a copy of this judgment before the 5th respondent for due compliance. (K.M.JOSEPH) JUDGE. MS