By Adv. Sri.harisankar v. Menon

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 19TH AUGUST 2010 / 28TH SRAVANA 1932 WP(C).No. 26391 of 2010(Y) -------------------------- PETITIONER(S): --------------- K.J.THOMASKUTTY, PROPRIETOR, M/S.MODERN ROCK MINING INDUSTRIES, KANNAMTHANATHU BUILDING, KOMPNOLIL, VADASSERIKKARA, PATHANAMTHITTA DISTRICT. BY ADV. SRI.HARISANKAR V. MENON RESPONDENT(S): --------------- 1. AGRICULTURAL INCOME TAX & COMMERCIAL TAX OFFICER, RANNY 689 672. 2. COMMERCIAL TAX INSPECTOR, COMMERCIAL TAX CHECK POST, BANGRA-MANJESWAR, KASARAGOD DISTRICT 671 323. BY GOVT. PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMACHANDRA MENON, J --------------------------- W.P(C) No.26391 of 2010-Y ---------------------------- Dated this the 19[th] day of August, 2010. J U D G M E N T The petitioner is engaged in running a metal crusher unit and is a registered dealer, as borne by Exts.P1 and P2. In connectionwith the business transaction between the petitioner and anothercompany, the petitioner has entered into Ext.P2(a) agreement andthe work has to be undertaken and satisfied as specified. 2.The case of the petitioner is that, in connection with thebusiness transaction, the petitioner had to purchased somemachinery, which was being transported in the vehicle bearingNo.MH 11M 5892, on the strength of Ext.P3 invoice, when the samewas intercepted on the way on 30.8.2010 issuing Ext.P4 noticeunder Section 47(2) of the KVAT act, doubting evasion of tax anddemanding security deposit to the extent as specified therein.Eventhough the petitioner submitted Exts.P5 and P6 explanations,the same were not acted upon and the detention still continues,which made the petitioner to approach this Court. The case of the petitioner is that, in connection with the 3.Heard the learned Government Pleader as well. W.P(C) No.26391 of 2010-Y 4.The learned counsel for the petitioner submits that, theincriminating circumstances noted in Ext.P4 are rather 'technical' innature. It is true that the name of the consignee was wrongly shownas that of the 'Company' mentioned in Ext.P2, instead of giving thename of the petitioner and it is stated that Form 16 was actuallyaccompanying the transport. The case of the petitioner is that thepetitioner had by virtue of Ext.P2 acquired necessary rights toconduct the operations in the concerned crusher and it was for thispurpose, that the machinery was being taken to the said site,showing the name of the consignee as the aforesaid company. Thelearned counsel also submits that the omission in mentioning the'date' was an inadvertent one and that there is no instance of taxevasion at all. The averments raised by the petitioner arevehimentally opposed from the part of the respondents assertingthat it is nothing but an instance of clear evasion of tax. Thelearned counsel for the petitioner further submits that absolutely norhyme or reason is there for demanding the security deposit to theextent as specified in Ext.P4 as the computation of tax has beenmade at the rate of 12.5%, whereas the particular commodity willattract tax only at the rate of 4% as per the specific entry under W.P(C) No.26391 of 2010-Y 83(52) to the Third schedule. W.P(C) No.26391 of 2010-Y 83(52) to the Third schedule. 5.Considering the facts and circumstances, this Court findsthat the matter requires to be adjudicated to ascertain the truth.However, it is not necessary to detain the goods as well as thevehicle any further and the same shall be released to the petitioneron condition that the petitioner satisfies 1/3[rd] of the security depositas demanded vide Ext.P4 and executes a 'simple bond' in respect ofthe balance amount. This will be without prejudice to the right ofthe respondents to pursue the adjudication proceedings, if any,which shall be finalised in accordance with law, as expeditiously aspossible, at any rate within two months from the date of receipt of acopy of this judgment. The Writ Petition is disposed of as above. ab P.R.RAMACHANDRA MENONJUDGE