IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH TUESDAY, THE 8TH JULY 2008 / 17TH ASHADHA 1930 WP(C).No. 19814 of 2008(H) -------------------------- PETITIONER: ------------ M/S.FLOATELS INDIA PVT.LTD., NO.B-3, P R S SANGHEETHA APARTMENTS, NEAR MUSIC COLLEGE, THYCAUD, THIRUVANANTHAPURAM 695 041, REPRESENTED BY ITS MANAGING DIRECTOR, MR. M.R.NARYANAN. BY ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.ANIL D. NAIR RESPONDENTS: ------------- 1. INTELLIGENCE OFFICER (IB), COMMERCIAL TAXES, THIRUVANANTHAPURAM 695 033. 2. DEPUTY COMMISSIONER OF COMMERCIALS (APPEALS), THIRUVANANTHAPURAM 695 004. 3. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, (TAXES), SECRETARIAT, THIRUVANANTHAPURAM 695 001. BY GOVERNMENT PLEADER, ADV.SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH, J. ```````````````````````````````````````````````````` W.P.(C) No. 19814 OF 2008 H ```````````````````````````````````````````````````` Dated this the 8th day of July, 2008 J U D G M E N T Aggrieved by Exts.P1 and P2 orders passed by the 1st respondent imposing penalty for the assessment years 2003-04 and 2004-05 respectively, the petitioner preferred Exts.P3 and P4 appeals under section 36 of the KGST Act before the 2nd respondent. The same stands rejected by Ext.P5 order by the 2nd respondent. The petitioner challenges Ext.P5. 2. I heard learned counsel for petitioner and also learned Government Pleader. The learned counsel for the petitioner would contend that the appellate order is a non- speaking order. It is submitted that reason is the soul of justice and referred to the decision of this Court reported in Razia Greens Vs. State of Kerala [1999 (3) KLT 716]. He also submitted that section 34 mandates giving of reason while disposing of the appeal. Sub section 3A of section 34 of WPC.19814/08 : 2 : the KGST Act mandates that the order of the Appellate Assistant Commissioner disposing of an appeal shall state the point for determination, the decision thereon and the reason for arriving at such decision. Learned counsel for the petitioner would contend that in Ext.P5 the appellate authority has reproduced the ground verbatim as stated in Exts.P3 and P4 appeals and the proceedings in Exts.P1 and P2 and thereafter in two sentences he holds that he is not inclined to deviate from the proposal. 3. Learned Government Pleader would submit that Exts.P3 and P4 are filed as revision under section 36 of the Act before the Deputy Commissioner and section 34(3A) is inapplicable to a revision filed under section 36. I see considerable merit in the submission of the learned Government Pleader. Sub section 3 of section 36 provides the manner in which the revision filed under section 36 should be disposed of. It may not be open to the petitioner to rely on the provisions of section 34 which relate to powers and duties of the Appellate Assistant Commissioner in dealing with the WPC.19814/08 : 3 : appeal filed under section 34. Therefore, there is no merit in the contention of the petitioner based on section 34(3A). 4. At any rate, it cannot be said that no reasons are stated in Ext.P5. Learned Government Pleader pointed out that the petitioner has an alternate remedy under revision under section 38 of the KGST Act before the Commissioner. In such circumstances, I do not see any ground to interfere with the matter under Article 226 of the Constitution and the petitioner is to be relegated to seek the alternate remedy under section 38 of the KGST Act. 5. The learned counsel for the petitioner also bring the attention of this Court to orders passed by the Deputy Commissioner(Appeals), the very same authority who passed Ext.P5 in the appeals against the assessment for the years 2003-04 and 2004-05. He pointed out that the appellate authority has directed the assessing authority to verify the contents of the appeal regarding the compounding application in regard to the works contract of Rs.1,29,39,531/- in the light of the decision cited and pass orders in accordance with law. WPC.19814/08 : 4 : Certainly, I would expect the Commissioner in revision filed by the petitioner to bestow his attention to the contentions to be raised. I see no reason as to whether the Commissioner will not apply his mind in considering the questions raised by the petitioner and discharge his duties as a quasi judicial body. In such circumstances, writ petition is disposed of relegating the petitioner to pursue the remedy under section 38 of the Act. It is open to the petitioner to seek interim relief before the Commissioner also. Sd/- (K.M.JOSEPH, JUDGE) aks /TRUE COPY/ P.A.TO JUDGE