ATTINKARA ELECTRONICS DIVISION Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner, a registered dealer under the Kerala Value Added Tax Act, 2003 (hereinafter referred to as 'the KVAT Act') has filed this Writ Petition seeking a writ of certiorari to quash Ext. P6 communication dated 18.5.2015 issued by the 4th respondent and seeking a writ of mandamus commanding the said respondent to take back Ext. P5 appeal on the file of the Kerala Value Added Tax Appellate Tribunal and to post the same for hearing by the Bench of the Tribunal. The petitioner has also sought for a writ of mandamus commanding the 2nd respondent to rectify the mistake in Ext. P3 order expeditiously. Going by the averments in the Writ Petition, the petitioner's business premises was inspected by the 3rd respondent on 18.8.2009, which resulted in initiation of penalty proceedings under sub -sections (8) and (10) of S. 44 of the KVAT Act, on the ground that one of the godowns where the petitioner had stored some goods was not specifically included in the certificate of registration. The 3rd respondent issued Ext. P1 order dated 6.10.2009 under sub -sections (8) and (10) of S. 44 of the KVAT Act, read with Rule 61 of KVAT Rules, imposing a penalty of Rs. 8,33,450/ - being 50% of the value of goods, for the offence of storing and stocking unaccounted goods in the undeclared godown.

(2.) Aggrieved by Ext. P1 order, the petitioner filed Ext. P2 appeal dated 16.12.2009 before the Deputy Commissioner (Appeals), Kollam, under S. 55 of the KVAT Act. Though the initial hearing with regard to stay of collection of penalty was heard by the Deputy Commissioner (Appeals), the files relating to Ext. P2 appeal was later transferred to the Deputy Commissioner, Commercial Taxes, Pathanamthitta, the 2nd respondent herein, consequent to the amendment of S. 55 of the KVAT Act, vide the Kerala Finance Act, 2014. As per the amendment so made, the appeals pending as on the date of the Kerala Finance Bill, 2014 would stand transferred from the Office of the Appellate Deputy Commissioner to the jurisdictional Deputy Commissioner and the said authority shall consider the same as if it is an appeal filed before it. However, the 2nd respondent by Ext. P3 order dated 4.2.2015 dismissed Ext. P2 appeal treating it as a revision filed under S. 57 of the KVAT Act. On noticing the said irregularity, the petitioner filed Ext. P4 rectification petition, under S. 66 of the KVAT Act, pointing out that, in view of the third proviso to S. 55 of the KVAT Act, the 2nd respondent ought to have disposed of Ext. P2 as if it is an appeal filed before it.

(3.) Though the 2nd respondent heard Ext. P4 rectification petition on 21.5.2015, no orders were passed. In view of the time limit prescribed under S. 60 of the KVAT Act for filing appeal, the petitioner filed Ext. P5 appeal before the Appellate Tribunal on 11.5.2015. However, the same was returned along with Ext. P6 communication dated 18.5.2015 of the 4th respondent, stating that the petitioner has to move a revision before the Commissioner, Commercial Taxes, under S. 59 of the KVAT Act, against Ext. P3 order passed by the 2nd respondent. Aggrieved by Ext. P6, the petitioner is before this Court in this Writ Petition seeking various reliefs.