IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 29TH JUNE 2010 / 8TH ASHADHA 1932 WP(C).No. 20227 of 2010(C) -------------------------- PETITIONER: --------------- N.A.VARGHESE, S/O.GEORGE, AGED 48 YEARS, NIRAPPILPUTHANPURAYIL, PROPRIETOR, SONIA FURNITURE & WOOD WORKS ANCHUKUNNU VILLAGE, ANCHUKUNNU P.O., MANANTHAVADY TALUK, WAYANAD DISTRICT. BY ADV. SRI.ABRAHAM MATHEW (VETTOOR) RESPONDENTS: --------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, COMMERCIAL TAX DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE INTELLIGENT OFFICER, SQUAD NO.5 COMMERCIAL TAXES, CAMP AT PERINTHALMANNA, MALAPPURAM. 3. THE COMMERCIAL TAX OFFICER, MANANTHAVADY. 4. AJMAL WOOD INDUSTRIES, NAGAVALAVU, ELAMPARA, MATTANNOOR VILLAGE, THALASSERY TALUK REPRESENTED BY ITS MANAGING PARTNER. 5. M.K.JABBAR HAJI, AGE AND FATHER'S NAME NOT KNOWN, MANAGING PARTNER AJMAL WOOD INDUSTRIES, NAGAVALAVU, ELAMPARA, MATTANNOOR VILLAGE, THALASSERY TALUK. 6. THE INSPECTING ASSISTANT COMMISSIONER, INTELLIGENCE, COMMERCIAL TAX, KALPETTA. BY SR. GOVERNMENT PLEADER ADV. MR. C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No. 20227 OF 2010 ......................................................................... Dated this the 29th June, 2010 J U D G M E N T The petitioner has approached this Court with the following prayers: “i) issue a writ of mandamus or other appropriate writ or direction quashing Exts. P7, P8 and P9 notices issued under Section 47(2) of the Kerala Value Added Tax 2003. ii) issue a writ of mandamus or other appropriate writ orders direction commanding the 2nd respondent to initiate the penalty proceedings under Ext.P7 to P9 against the respondents 4 and 5 or in the alternative to defer the proceedings pursuant to them till the disposal of the suit filed by the petitioner iii) Declare that the petitioner is not liable to account for answer to the unauthorised transportation of excessive quantity of timber than what has been covered by the delivery note and accordingly hold that the respondents 4 and 5 are only liable to be proceeded against for the same. iv) To grant such other reliefs which the petitioner may seek from time to time and this W.P.(C) No. 20227 OF 2010 2 Hon'ble Court may deem fit to be granted in the circumstances of the case.” 2. The petitioner is a dealer in timber at Anjukunnu in Wayanad district, who purchased various lots of timber as covered by Exts. P1 to P3 invoices . Subsequently, a portion of the said timber was sold to the respondent Nos. 4 and 5 . Allegedly making use of the absence of the petitioner in the premises at Palakkad, excess quantity of the materials was transported by the respondent Nos. 4 and 5. While so, the vehicle and the goods were intercepted by the departmental authorities near Palakkad issuing notice under Section 47(2) of the KVAT Act, doubting evasion of tax and demanding security deposit. The learned Counsel for the petitioner submits that the petitioner being the consignor, notice was served upon the petitioner, pursuant to which, the petitioner satisfied the security deposit. Subsequently, the petitioner was constrained to approach the Civil Court by filing O.S.No.218 of 2009 and I.A. (Ext.P14) for injunction, before the Sub Court, Palakkad . Pursuant to the order in the above I.A., an Advocate Commissioner was appointed. The timber forming the subject W.P.(C) No. 20227 OF 2010 3 matter of the Suit was located by the Advocate Commissioner on the premises of the respondent Nos. 4 and 5, who are the defendants in the O.S. It is contended by the defendants in Ext. P16 written statement filed , (as stated in paragraph No.4 of the written statement) that the timber were actually purchased by them from the owners directly and the petitioner/plaintiff was in no way connected with the transaction . It is stated that the Civil Suit is still pending. The prayer of the petitioner is that, pursuant to the satisfaction of the security deposit, the departmental authorities are proceeding with adjudication proceedings and if it is permitted to be finalised before finalisation of the Civil Suit, huge liability is likely to be mulcted upon the shoulders of the petitioner , which hence is sought to be intercepted, seeking for a direction to the departmental authorities to defer the adjudication exercise till the Civil Suit is taken to its logical conclusion. 3. The learned Government Pleader appearing for the respondents submits that, this is nothing but an instance of collusion between the petitioner and respondent Nos. 4 and 5. It W.P.(C) No. 20227 OF 2010 4 is stated that transportation of the materials was without any valid documents as contemplated under Section 46(3) of the KVAT Act, which hence was rightly intercepted by the concerned respondents, issuing notice under Section 47(2) doubting evasion of tax and demanding security deposit. Pursuant to issuance of the notice, the petitioner admittedly satisfied the security deposit and got the timber released. 4. Obviously, there is no case for the petitioner that, on getting the timber released, the same was fraudulently removed by the respondent Nos.4 and 5 to their premises without his knowledge. On the other hand, after satisfying the security deposit, the petitioner indirectly caused the same to be released to the 4th and 5th respondents to be taken to their premises. So also, there is no case for the petitioner that, even after coming to know about the alleged fraudulent removal of the goods by the respondents No.4 and 5, the petitioner has preferred any criminal complaint before the Police or that he has approached the court directly, if the police has not taken any action pursuant to the said complaint. W.P.(C) No. 20227 OF 2010 5 5. This being the position, the version put forth by the petitioner that the goods have been removed without his knowledge and involvement cannot be believed without a pinch of salt. In any view of the matter, this Court does not propose to go into the merits or demerits of the contentions raised in this Writ Petition, but for holding that the prayer of the petitioner seeking to issue a direction to the departmental authorities to defer the adjudication proceedings till the Civil Suit between the petitioner and the respondent Nos. 4 and 5 is finalised, does not involve any merit or bonafides. No interference is warranted and the Writ petition is dismissed. It is made clear that the adjudication proceedings shall be pursued and finalised untrammeled by any of the observations made by this Court in this judgment. P.R. RAMACHANDRA MENON, JUDGE. lk