K.V. JOHNY Vs. STATE OF KERALA

JUDGEMENT

(1.) The revision petition has been preferred against the order dated 30.05.2015 of the KVAT Appellate Tribunal, Ernakulam in R.P. No. 8/2013 in T.A.(VAT) No. 384/2012. The grievance of the petitioner is against the cancellation of the permission granted to him on 30.06.2008 by the Commercial Tax Officer, Thrissur to pay tax under the compounding scheme under Section 8(f) of the Kerala Value Added Tax Act, 2003 (hereinafter referred to as 'the Act').

(2.) The petitioner commenced business on 24.03.2008. An application was filed for permission to pay tax under Section 8(f) on which Annexure-II order dated 30.06.2008 was issued. The permission granted is for the assessment year 2008-09 and is stated to be valid till 31.03.2009. On 24.02.2009, the Deputy Commissioner, Department of Commercial Taxes, Thrissur as per Annexure-III order cancelled Annexure II order by invoking the powers vested in him under Section 56 of the Act. The order says that going by Section 8(f)(i), a dealer who has not transacted any business during any of the three consecutive years preceding is not eligible for compounding during the year 2008-09. Annexure III order was challenged in revision before the Commissioner of Commercial Taxes and by Annexure IV order dated 8.7.2009, the matter was remitted back to the Assessing Authority for issuing fresh orders in accordance with law. Even though the matter has been remitted back, a reading of the order shows that the issue regarding the entitlement of the petitioner to opt under Section 8(f) was not considered at all.

(3.) Notice was issued to the petitioner, as directed in Annexure-IV order. The petitioner approached this Court by filing W.P.(C) No. 942/2010 stating that no orders have been issued pursuant to Annexure-IV. On 12.01.2010, by Annexure-VI judgment, this Court disposed of W.P.(C) No. 942/2010 directing the Commercial Tax Officer to consider and pass orders, in accordance with law, with regard to the law declared by the Division Bench of this Court in Johnson and Johnson Ltd. v. Assistant commissioner reported in [2009 (17) KTR 613 (Ker)]. It appears that on 13.01.2010, the Commercial Tax Officer issued orders rejecting permission to pay tax under Section 8(f). The order dated 13.1.2010 was challenged in W.P. (C) No. 11777/2010 and by judgment dated 31.10.2011, this Court quashed the order of the assessment officer for the reason that the Officer had failed to consider the judgment reported in [2009 (17) KTR 613 (Ker)], in spite of being specifically directed to do so. On reading the judgment in W.P.(c) 11777/2010, it is seen that this Court did not offer any opinion as to the applicability of the above judgment to the facts of the petitioner's case.