Wp(C)/10392/2014 Of Biju Abraham v. Agrl.income Tax & Commercial Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 11TH DAY OF APRIL 2014/21ST CHAITHRA, 1936 WP(C).No. 10392 of 2014 (Y) ---------------------------- PETITIONER(S): -------------------------- BIJU ABRAHAM, TIMBER MERCHANT, NELLICKAL, AYTHALA (PO) RANNI PATHANAMTHITTA (DT) BY ADVS.SRI.K.N.SREEKUMARAN SRI.P.D.UNNIKKANNAN NAIR RESPONDENT(S): ---------------------------- 1. AGRL. INCOME TAX & COMMERCIAL TAX OFFICER RANNI, PATHANAMTHITTA (DT) - 689 646 2. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT TAXES DEPARTMENT GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM PIN 695 001 BY GOVERNMENT PLEADER SMT.SHOBHA ANNAMMA EAPEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11-04-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 10392 of 2014 (Y) ---------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXT.P1 - TRUE COPY OF THE SHOW CAUSE NO.32030955584/2011-12 DATED28-1-2014 ISSUED BY THE 1ST RESPONDENT TO PETITIONER EXT.P2 - TRUE COPIES OF THE REPLY DATED 30-1-2014 AND THE DOCUMENTSFILED BY PETITIONER BEFORE 1ST RESPONDENT EXT.P3 - TRUE COPY OF THE ASSESSMENT ORDER NO.32030955584/2011-12DATED 31-3-2014 ISSUED BY THE 1ST RESPONDENT TO PETITIONER. //True Copy// Mrcs P.A. To Judge P.R. RAMACHANDRA MENON, J. --------------------------------------- W.P.C.No.10392 OF 2014 --------------------------------------- Dated this the 11[th] April, 2014 JUDGMENT The petitioner is aggrieved by Ext.P3 order dated31.03.2014. The case of the petitioner is that the petitioner is aregistered dealer in timber under the KVAT & CST Acts, who isalso having registration under the relevant provisions of law inTamil Nadu as well. The petitioner has two branches, situated in'Theni' in Tamil Nadu and at 'Ranni' in Kerala. Timber is beingimported from abroad, either through the Tuticorin Port or theCochin Port and the transactions are being separately accountedin the concerned branches. 2. The issue involved herein is in respect of timber,imported through Tuticorin Port. The sale effected in respect ofthe portion covered by the Theni branch is reflected in the booksof accounts of the said branch. It is stated that, for convenience,the petitioner has shown the same as 'stock transfer' in theaccounts, but there is no physical movement of the property fromKerala to Theni and therefore, it is not correct to say that the W.P.C.No.10392 OF 2014 interstate stock transfer for an extent of Rs.4,00,74,502/-, forwhich exemption was sought for, to be treated as inter-statesale. All the concerned consignments are supported by relevantdocuments and reflected in the books of accounts. The claim forexemption was rejected stating that no proper account wassubmitted by the petitioner, inspite of the fact that there was nophysical movement of the goods. On receipt of Ext.P1 showcause notice, the petitioner has explained the position bysubmitting Ext.P2. But without discussing the facts and figuresor explanation offered by the petitioner, the proceedings werefinalised by the first respondent by passing Ext.P3 order, simplysaying that the reply submitted by the petitioner did not haveany merit and hence summarily rejected. 3. Heard the learned Government Pleader as well. 4. On going through Ext.P3, this Court finds that the version put forth by the petitioner as per Ext.P2 has never beenadverted to. It is stated that it was “proposed to assess”to thebest judgment basis under Section 25(1). The order passed bythe first respondent vide Ext.P3 is not liable to be treated as a W.P.C.No.10392 OF 2014 'speaking order' and the matter requires to be reconsidered. 3. Heard the learned Government Pleader as well. 4. On going through Ext.P3, this Court finds that the version put forth by the petitioner as per Ext.P2 has never beenadverted to. It is stated that it was “proposed to assess”to thebest judgment basis under Section 25(1). The order passed bythe first respondent vide Ext.P3 is not liable to be treated as a W.P.C.No.10392 OF 2014 'speaking order' and the matter requires to be reconsidered. 5. Accordingly, Ext.P3 is set aside. The first respondentshall reconsider the matter, after giving an opportunity of hearingand appropriate orders shall be passed in accordance with law,also taking note of the contentions of the petitioner vide Ext.P2,which shall be done at the earliest, at any rate, within 'six weeks'from the date of receipt of a copy of this judgment. Thepetitioner shall produce a copy of this judgment along with acopy of the writ petition before the first respondent for furthersteps. Writ petition is disposed of. Sd/- P.R. RAMACHANDRA MENON, JUDGE sd