TaxTMI 
TaxTMI 
2019 (11) TMI 116
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....ons involve a common issue, they are taken up for consideration together and disposed by this common judgment. 2. W.P.(C).Nos.7122/2019 and W.P.(C).No.11524/2019 have been filed by M/s.DLF Southern Town Private Limited impugning (i) the penalty order dated 31.1.2019 passed against it by the Intelligence Officer under Section 67(1) of the Kerala Value Added Tax Act [hereinafter referred to as the 'KVAT Act'] and (ii) the assessment order dated 30.3.2019 subsequently passed by the Assistant Commissioner (WC) in terms of Section 25(1) of the KVAT Act. W.P.(C).No.9073/2019 and W.P.(C).No.11489/2019 are filed by another entity namely, M/s.DLF Home Developers Limited challenging (I) the penalty order dated 26.2.2019 passed by the Intelligence Officer under Section 67(1) of the KVAT Act and (ii) the assessment order dated 30.3.2019 that was subsequently passed by the Assistant Commissioner (WC) under Section 25(1) of the KVAT Act. All the four writ petitions pertain to the assessment year 2012-13. W.P.(C).No.19762/2019 is one filed by M/s.DLF Home Developers Limited challenging the penalty order dated 26.2.2019 passed by the Intelligence Officer under Section 67(1) of the KVAT ....
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.... was not received by it or that the assessee had not produced material to justify its claim for deduction of the amounts covered by the certificates from the total taxable turnover assessed. 5. As regards W.P.(C).No.7122/2019 and W.P. (C).No.9073/2019, as already noticed above, the challenge in these writ petitions is against the penalty orders passed by the Intelligence Officer under Section 67(1) of the KVAT Act. The said orders have been passed even prior to the assessment proceedings being completed by the Assessing Authority under the KVAT Act. In the orders impugned in these writ petitions also, while in reply to the notices proposing penalty, the petitioners had brought to the notice of the Intelligence Officer concerned, that a substantial portion of the turnover taken for the purposes of the penalty proceedings had to be reduced by the amounts shown in the Form 20H certificates relied upon by them, the Intelligence Officer proceeded to ignore the same and, as in the case of the assessments aforementioned, chose not to rely on the said certificates produced by the petitioners solely for the reason that the details of the tax paid by the sub-contractors had not been furni....
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....ready stated above, in connection with W.P. (C).No.7122/2019 and W.P.(C).No.9073/2019, the impugned penalty orders cannot be legally sustained. 7. Counter affidavits have been filed by the respondents in all these writ petitions. In relation to the assessment orders that have been impugned, it is the stand of the respondents that the petitioner assessees had filed nil returns without showing any taxable or exempted turnover, and that, the consistent stand of the assessees was that they were not getting any turnover attributable to works contract, and that they were not receiving any consideration from the awarders towards the works contract. It was found, however, that the assessees were receiving amounts towards works contracts from the awarders, and inasmuch as there were no details shown by the assessees in their returns as regards tax paid by the sub contractors, the Assessing Authority could not be faulted for not considering the deductions claimed by the assessee at the time of hearing. The decision of the Supreme Court in Larsen & Toubro v. State of Karnataka - [(2013) 65 VST 1] is sought to be distinguished by the respondents on the facts and circumstances of the case an....
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....-contractors, ought to have been considered by the Assessing Authority while competing the assessment in relation to the petitioners. The non-consideration of the said material by the Assessing Authority, in my view, vitiates the assessment orders that are impugned in these writ petitions. I accordingly set aside the impugned assessment orders in W.P. (C).No.11524/2019 and W.P.(C).No.11489/2019, and direct the Assessing Authority to complete the assessment afresh, after taking note of the material produced by the assessees to substantiate its contentions regarding exclusion of a substantial part of the turnover for the purposes of assessment to tax. To enable the Assessing Authority to pass fresh orders as directed, I direct the petitioners in the said writ petitions to appear before the Assessing Authority, at his Office, at 11.00 a.m. on 28.10.2019. The Assessing Authority shall pass fresh orders, as directed, within one month thereafter. I make it clear that, in the de novo proceedings to be conducted by the Assessing Authority, it will be open to the petitioners to raise all contentions on merits, before the said authority, and the orders passed by the Assessing Authority shall....