VASANTHA ANIRUDHAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner, inter alia, challenges the validity of Section 26 of the Kerala Value Added Tax Act, 2003 (hereinafter referred to as, "the VAT Act"). She also challenges the orders passed by the second respondent levying penalty on the petitioner purportedly under Section 19C of the Kerala General Sales Tax Act, 1963 (for short, "the KGST Act") read with Section 26 of the VAT Act. The orders levying penalty, exhibits P-11 and P-12, are appealable in terms of the provisions of the Act. Since the learned Counsel for the petitioner and learned Special Government Pleader made submissions as regards the constitutional validity of the provisions under challenge as also on the jurisdiction over the action taken by the authorities concerned, I have considered the contentions on merits, without relegating the petitioner to the alternate remedy available under the Act in circumstances where I was convinced that apart from the issue regarding the validity of the provisions of the Act, the question touching upon the jurisdiction of the authority to act under Section 26 of the Act genuinely arises for consideration in this writ petition.

(2.) The petitioner claims to be a housewife, having no business interests whatsoever. The petitioner s husband late Anirudhan was a Government contractor. He expired on November 5, 2000. Later Anirudhan and the petitioner s son Biju Anirudhan had jointly conducted business under the name and style of M/s. Vasan Enterprises. Apparently, this business was stopped on May 30, 1995. Biju Anirudhan thereafter commenced business under the name and style of M/s. Anjaneya Motors, as a proprietary concern for the distribution of opel cars. The said concern also dealt with the spare parts of cars. M/s. Anjaneya Enterprises is registered under the KGST Act as also under the VAT Act.

(3.) On February 21, 2008 the petitioner received summons from the Assistant Commissioner, second respondent, to appear before him on March, 11 2008. Several questions dealing with the business of Biju Anirudhan, the petitioner s son, was put to her. The petitioner pointed that she has no information about her son s business as such. Her son had taken some private loans from her and these loans were repaid either in cash or by way of cheques. The petitioner s husband had two cars at the time of his death. Biju Anirudhan had taken those two cars. At the instance of her son, she stood as a guarantor for some loan taken by Biju Anirudhan from the bank. She was not a participant in the business run by Biju Anirudhan. For the purpose of enabling Biju Anirudhan to avail of a loan from State Bank of India, M. G. Road Branch, Thiruvananthapuram, the petitioner had made available the property belonging to her in Survey No. 3639/2/5 of Kaudiar Village as an additional security, even at a point of time where the said property had already been mortgaged by the petitioner as a security for a housing loan availed by her. The petitioner has produced a copy of the statement recorded by the second respondent on March 11, 2008 as exhibits P-3. Either dissatisfied with the explanation or deposition, as it were, exhibits P-4 to P-9 notices were issued by the second respondent proposing to impose a penalty on the petitioner under Section 19C of the KGST Act read with Section 26 of the VAT Act. These notices relate to the years 2001- 02 to 2006-07. Exhibits P-4 to P-9 are almost identically worded, at least, insofar the portions therein relating to the petitioner are concerned. Since the submissions made by counsel referred to the contents of the notices and since the arguments had also centered around the exercise of jurisdiction by the second respondent under Section 19C of the KGST Act or under Section 26 of the VAT Act, as the case may be, it would be useful to refer to the relevant portion of exhibit P-4, which reads as follows: