INDANA TRADING CO Vs. INTELLIGENCE INSPECTOR

JUDGEMENT

(1.) The first petitioner purchased certain goods from the second petitioner and while that was being transported in a vehicle, the vehicle was intercepted by the first respondent stated to be in exercise of power under S.21A(1) of the Kerala General Sales Tax Act to satisfy that there was no evasion of tax. On examining the sale bills it was found that the goods covered by the bill were undervalued. Accordingly notice was issued in terms of sub-s. (2) of S.29A to both the petitioners. Ext. P1 is the notice, to which Ext. P2 reply was filed by the second petitioner. It was at that stage the petitioners approached this Court challenging Ext. P1 contending that S.29A does not have any application in the facts of the case. During the pendency of the Original Petition it seems that the first respondent had issued Ext. P5 order, which is produced along with CMP No. 40968 of 2001, finalising the proceedings initiated as per Ext. P1.

(2.) The contention raised by the petitioner is that when the driver of vehicle in which the goods were transported did possess the necessary documents in terms of S.29A of the Act, the first respondent did not have any jurisdiction to ascertain the genuineness or otherwise of the bill especially when the second petitioner had admitted that he had sold the goods to the first petitioner as per the bills available in the vehicle. In such situation, if at all there was apprehension on the part of the first respondent that there was evasion of tax, his jurisdiction shall be to invoke the power under S.28A to purchase the goods for a value 10% higher than that disclosed in the bill. Therefore this was not a situation to invoke S.29A of the Act. So there is total lack of jurisdiction. Therefore a notice issued under sub-s. (2) of S.29A of the Act can be impugned in a proceedings under Art.226 of the Constitution, even though the order that may result out of the proceedings is appealable.

(3.) Certainly when there is lack of jurisdiction on the part of a statutory authority, one need not wait until the proceedings are completed. When there is total lack of jurisdiction or fragrant violation of the principles of natural justice, necessarily one can invoke the remedy available under Art.226 of the Constitution.