The Kerala High Court dismissed the writ petition as the assessee failed to respond on notice issued under section 25 of the Kerala Value Added Tax Act, 2003 ( the KVAT ). The court cannot examine the merit of the impugned assessment order as this court does not exercise the appellate jurisdiction.
Aji Thomas, the writ petitioner challenged the assessment order by the State Tax Officer, State Goods and Services Tax Department, Works Contract, Kollam, in respect of the assessment year 2016-2017 under Section 25(1) of the Kerala Value Added Tax Act, 2003 ( the KVAT ).
The Intelligence Officer, Squad No.1, Commercial Taxes, Kollam, after conducting an enquiry under Section 47(6) of the KVAT Act, thought had M/s Blue Seven Star Constructions Pvt Ltd, proprietary concern of the petitioner had suppressed a turnover and evaded payment of tax amount. He forwarded the report to the State Tax Officer for further proceedings. The petitioner was issued notice with Form 17 on 16.11.2018 and hereafter under Section 25(1) of the KVAT Act, 2003.
Despite the service of notice, the dealer did not produce the books of account nor file any reply to the notices. As the petitioner was not cooperating and coming forward with relevant records for completing the assessment proceedings under Section 25 of the KVAT, a letter was sent by the State Tax Officer to the Income Tax Authorities to provide the Income Tax return filed by the petitioner for the assessment year 2017-2018 corresponding to the financial year 2016-2017.
The Income Tax Authorities handed over a copy of the Income Tax return which would reveal an amount of Rs.1,65,40,000/- received as sales and services in the Profit & Loss account for the financial year 2016-2017. Considering the said evidence of sale and services, assessment under Section 25(1) of the KVAT was proposed at Rs.1,36,45,500/- ( balance taxable turn over ).
The petitioner did not file any reply and also did not avail the opportunity of being heard. Therefore, a presumption was drawn that the petitioner did not have anything to object to the proposed assessment proceedings for the year 2016-2017, which was completed at a balance taxable turnover of Rs. 1,36,45,500/- and tax was levied at 14.5%.
On the other hand Adv. Jasmine M M, the Government Pleader has submitted that the petitioner was given ample opportunity by issuing show cause notices as well as the proposed assessment order. But the petitioner did not come forward. He never bothered to file a reply to the show cause notices and notices for producing the relevant records for completing the assessment. The petitioner was given enough opportunity but he did not avail the same. Thus, the petitioner cannot object in respect of the assessment order before the court.
If the petitioner is aggrieved by the assessment order, there is a remedy for filing the appeal under Section 55 of the KVAT Act. Instead of filing the statutory appeal, the petitioner has approached the court, the writ petition is therefore not maintainable. It was further submitted that the impugned order is neither without jurisdiction nor against the express provision of law, requiring interference by the court in the exercise of its limited jurisdiction under Article 227 of the Constitution of India.
The assessment order would disclose that the petitioner was given notice to produce the relevant records to complete the assessment. The petitioner never bothered to file a reply to the notices. The proposed assessment order was also served on the petitioner requiring him to file objection, if any. A single bench comprising Justice Dinesh Kumar Singh held that the court cannot examine the merit of the impugned assessment order as this court does not exercise the appellate jurisdiction. The Court dismissed the writ petition.
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