IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 8TH FEBRUARY 2011 / 19TH MAGHA 1932 WP(C).No. 2290 of 2011(I) ------------------------------------ PETITIONER(S): ---------------------- VIVEK K.N., AGED 23 YEARS, S/O.SIVANARAYANAN, PUTHIYEDATHPARAMBU HOUSE, PUTHIYARA P.O., KOZHIKODE, PROPRIETOR, NALANDA TRADERS, DOOR NO.32/822, C.V.COMPLEX, MOOZHIKKAL, KOZHIKODE DISTRICT. BY ADV. SRI.ALIAS M.CHERIAN, SRI.T.A.JEHFER SADHIQ. RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, FINANCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN- 695 001. 2. COMMERCIAL TAX OFFICER, 3RD CIRCLE, KOZHIKODE, PIN- 673 001. 3. INTELLIGENCE INSPECTOR, SQUAD NO.IV, DEPARTMENT OF COMMERCIAL TAX, GOVERNMENT OF KERALA, MATTANCHERYY, ERNAKULAM, PIN- 682 002. 4. INTELLIGENCE OFFICER, SQUAD NO.II, COMMERCIAL TAXES, KOZHIKODE, PIN- 673 001. R1 TO R4 BY GOVT. PLEADER MR.V.K. SHAMSUDHEEN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs C.K. ABDUL REHIM, J. ------------------------------------------------- W.P.(c) No. 2290 OF 2011-I ------------------------------------------------- DATED THIS THE 8th DAY OF FEBRUARY, 2011 J U D G M E N T Challenge is against Ext.P12 notice issued by the 4th respondent proposing to impose penalty under Section 67 of the Kerala Value Added Tax Act, 2003 (KVAT Act) alleging deliberate filing of untrue and incorrect returns with an attempt to evade payment of tax legally due. Inter alia the petitioner is seeking direction to the 2nd respondent to issue Delivery Notes to the petitioner inorder to continue the business activities. It is averred that, pursuant to interception of a transport on 09-01-2010, proceedings under Section 47 (2) of the KVAT Act was initiated against the petitioner. It is evident that on the request of the respondents the petitioner had surrendered the unused Delivery Notes supplied to him. It is further revealed that Ext.P5 show cause notice was issued to the petitioner by the 2nd respondent intimating the proposal for cancellation of W.P.(c) No.2290/2011 -2- the registration granted under the KVAT Act and CST Act, and the said proceedings is pending finalisation. Exhibits P7 to P9 notices were issued to the petitioner demanding payment of various amounts on the basis of the monthly returns submitted by him, towards purchase tax. Through Ext.P9 the petitioner was intimated that he is not entitled to claim any special rebate under Section 12 with respect to purchase tax due under Section 6 (2), in the same month itself. Therefore, the petitioner was directed to revise the returns already submitted. It is evident from Ext.P10 that the petitioner was requested to make payment of the difference in tax amount with respect to months from April 2010 to August 2010. But the allegation raised in Ext.P12 is that, inspite of receipt of such notice, the petitioner had filed monthly returns for the subsequent periods without payment of tax due under Section 6 (2). The proposal for penalty under Section 67 was issued on the above said premise. W.P.(c) No.2290/2011 -3- 2. In the statement filed on behalf of the 4th respondent it is mentioned that petitioner was only a salesman and representative while applying for registration. It is stated that now he is a plus two student in a private institution and the business is run by certain people in and around Perumbavoor, under the said registration to the tune of Rs.3 crores turnover. At the same time the petitioner had filed affidavit stating that he is insolvent. According to the respondents it is a fake registration obtained in the name of an insolvent benamidar and various steps has been initiated to control such illegal business activities. It is further mentioned that petitioner was not given any explanation for filing untrue returns and for not paying the tax amount due. There is deliberate filing of untrue and incorrect returns, is the allegation. It is also mentioned that Plywood is not a commodity which is available from any unregistered dealer and therefore the contention of the petitioner is devoid of any merit. W.P.(c) No.2290/2011 -4- 3. While considering the rival contentions I take note of the fact that Ext.P12 is only a notice issued intimating proposal for imposition of penalty. It is evident that the petitioner had submitted Ext.P13 reply to the said notice. That being so, it is highly premature for this Court to interfere. It is for the authority concerned to finalise the proceedings after considering Ext.P13. Therefore the challenge against Ext.P12 cannot be entertained in this writ petition. 4. With respect to the reliefs sought for by way of direction to grant Delivery Notes, it is for the assessing authority to decide whether Delivery Notes can be issued in the context of the other proceedings pending. When the writ petition cane up for consideration on 24-01-2011 this court directed the 3rd respondent to consider the request of the petitioner to grant Delivery Notes and to take an appropriate decision thereof. Therefore, it is not necessary to issue any further direction in this regard. If no decision W.P.(c) No.2290/2011 -5- has already been taken in the matter, it is left open to the petitioner to approach the appropriate authority and in such case the authority concerned is to take appropriate decision considering all the attendant facts and circumstances. 5. Under the above mentioned circumstances the writ petition is dismissed, subject to the above observations. Sd/- C.K. ABDUL REHIM, JUDGE. AMG True copy P.A to Judge