TaxTMI 
TaxTMI 
2015 (9) TMI 1513
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....t 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. 2. 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 Section 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 registratio....
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....ondent ought to have disposed of Ext.P2 as if it is an appeal filed before it. 4. 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 Section 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 Section 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. 5. A counter a....
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....e goods not accounted for, and to treat the said stock as stock out side the regular books of account. To the said notice, the petitioner submitted its objection dated 31.8.2009 and the Intelligence Officer by Ext.P1 order imposed a penalty of Rs. 8,33,450/-, under sub-section (8) of Section 44 of the KVAT Act, being 50% of the value of the taxable goods not accounted for, and treated the said stock as stock out side the regular books of account, under sub-section (10) of Section 44 of the KVAT Act. Ext.P1 order of penalty was under challenge in Ext.P2 appeal dated 16.12.2009 filed before the Deputy Commissioner (Appeals), Kollam, under Section 55 of the KVAT Act. 9. During the pendency of Ext.P2 appeal, Section 55 of the KVAT Act was amen....
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....the Assistant Commissioner (Appeals), if the order was passed by an authority of the rank of a Commercial Tax Officer: Provided that orders passed under sections *[48, 70A and 72] shall be appealable only to the Deputy Commissioner (Appeals). Provided further that the Deputy Commissioner (Appeals) and Assistant Commissioner (Appeals) may admit an appeal presented after the expiration of the said period if he is satisfied that the appellant had sufficient cause for not presenting the appeal within the said period. *[Provided also that where an order of the assessing authority which has become not appealable with effect from 1st April, 2014 by virtue of the Kerala Finance Bill, 2014 is pending in appeal under this section, such appeal shal....
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....al as a revision filed under Section 57 of the KVAT Act. The procedure adopted by the 2nd respondent while disposing Ext.P2 appeal is per se illegal and even contrary to the mandate of the third proviso to sub-section (1) of Section 55 of the KVAT Act. 11. On noticing the irregularity in Ext.P3 order passed by the 2nd respondent, the petitioner filed Ext.P4 rectification petition under Section 66 of the KVAT Act, pointing out that, in view of the third proviso to Section 55 of the KVAT Act the 2nd respondent ought to have disposed of Ext.P2 appeal as if it is an appeal filed before it. Since no orders were passed on the said application, the petitioner filed Ext.P5 appeal before the Appellate Tribunal on 11.5.2015, within the prescribed ti....
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....VAT Act, an order imposing penalty under sub-section (8) of Section 44 or under Section 67 of the KVAT Act became not appealable, with effect from 1.4.2014. Therefore, with effect from the aforesaid date, a dealer who is aggrieved by an order imposing penalty under sub section (8) of Section 44 or under Section 67 of the KVAT Act has to avail the revisional jurisdiction provided under Section 57 of the KVAT Act, by filing an application for revision. However, in the case of an appeal already pending before the Deputy Commissioner (Appeals) and Assistant Commissioner (Appeals), arising out of orders issued under sub-sections (8) and (9) of Section 44, Section 67, etc., an exception is carved out in the third proviso to sub-section (1) of Sec....