2016 (12) TMI 463 - HC - VAT and Sales Tax

High Court upholds tax assessment under Section 25(1) of KVAT Act, 2003 emphasizing appellate remedy over direct court challenge.

Mookken Devassy (Thevara) & Co., Represented by Partner David T. Mookken Versus Commercial Tax Officer, Fourth Circle, Ernakulam

The High Court dismissed the writ petition challenging an order under Section 25(1) of the KVAT Act, 2003 that assessed tax at 13.5% for a presumptive tax ... Rate of tax - Petitioner being a presumptive tax dealer is liable to pay only tax @ 0.5% on the turnover if the turnover is less than 60 lakhs. However, the assessment is made by charging tax @13.5% - Held that: - Perusal of Ext.P3 order would indicate that the assessing officer had taken such a view on the following facts (1) The dealer has produced only photo copy of 4 invoice along with the reply. He has not produced the originals for verification since he claim that the purchase was made by their associate concerns Mookken Devassy, Palarivattom; (2) On verification of the photo copies of the invoice produced the means of transport (vehicle no.) were not endorsed in invoice. Accordingly the photo copy of the bill is seemed to be not genuine. Particularly the transport as per the documents were commenced from Muvattupuzha to Palarivattom in a distance of 30 kilometer and the journey to be performed in a carrier vehicle. When such a view had been taken by the assessing authority, I do not think that this Court will be justified in considering the claim made by the petitioner on merits. Petitioner will have to challenge the aforesaid findings in a properly constituted appeal. Hence, I do not think that this Court is justified in interfering with the matter bypassing the appellate remedy available to the petitioner - petition allowed - petitioner allowed to prefer an appeal. Issues:Challenge to order under Section 25(1) of the KVAT Act, 2003 regarding tax rate.Analysis:The petitioner challenged Ext.P3 order, which assessed tax at 13.5% despite being a presumptive tax dealer liable to pay only 0.5% tax if turnover is less than `60 lakhs. The assessing officer based the assessment on the grounds that the dealer only provided photocopies of invoices, claiming purchases were made by associate concerns, and the invoices lacked essential details like transport means and vehicle numbers. The court noted that the petitioner should challenge these findings through the appellate remedy rather than seeking interference from the court directly.Conclusion:The High Court dismissed the writ petition, emphasizing that the petitioner should utilize the appellate remedy available to challenge the findings in Ext.P3 order. The petitioner was granted the right to prefer an appeal against the order, indicating that the court would not intervene without exhausting the proper appellate process.