Bogus Document; Abdulkhader Vs. Intelligence Officer Department of Commercial Taxes [Kerala High Court, 08-08-2016]

Review Petition –Building Plan – Bogus Document – There was a calculated attempt on the part of the petitioner in approaching the High Court with false statements. The petitioner has even produced bogus documents along with the Writ Petition and also in the Review Petition. Therefore, dismissed the Review Petition after imposing a cost of ₹50,000/-(Rupees Fifty Thousand only) on the petitioner.

Building Plan

IN THE HIGH COURT OF KERALA AT ERNAKULAM

ANIL K. NARENDRAN, J.

R.P.No.381 of 2016 in W.P.(C.)No.17194 of 2016

DATED THIS THE 8 th DAY OF AUGUST, 2016

AGAINST THE JUDGMENT IN WP(C) 17194/2016 of HIGH COURT OF KERALA DATED 10-05-2016

REVIEW PETITIONER

ABDULKHADER, ALAPPUZHA.

BY ADV. SRI.P.SHANES METHAR

RESPONDENTS

1. THE INTELLIGENCE OFFICER DEPARTMENT OF COMMERCIAL TAXES, SQUAD -II, MINI CIVIL STATION,TIRUR.

2. M/S.AL AMEEN TIMBERS EDARIKKKODE, KOTTAKKAL, MALAPPURAM 676 501.

R1 BY GOVERNMENT PLEADER SRI C.K.GOVIND

ORDER

This Review Petition arises out of the judgment dated 10.5.2016 in W.P.(C)No.17194 of 2016. The said Writ Petition was filed by the petitioner herein seeking for a writ of certiorari to quash Ext.P4 notice dated 2.5.2016 issued by Intelligence Officer, Squad No.II, Commercial Taxes Department, Tirur, the 1 st respondent herein, under

Section 47(2) of the Kerala Value Added Tax Act, 2003

(hereinafter referred to as the ‘KVAT Act’) and for a writ of mandamus commanding the said respondent to release the goods under detention without collecting any security deposit.

2. The said Writ Petition was disposed of by the judgment dated 10.5.2016. Paragraphs 5 to 7 of the said judgment read thus;

“5. The learned counsel for the petitioner would submit that the goods were transported on the strength of Ext.P3 purchase bill. However, the finding in Ext.P4 notice is that the consignment was not accompanied by any documents. In such circumstances, the 1 st respondent cannot be found fault with in intercepting the goods and issuing Ext.P4 notice under Section 47(2) of the Act.

6. If the petitioner is aggrieved by Ext.P4 notice, it is for him to file an appropriate objection before the 1 st respondent, along with supporting materials. If any such objection is received, the 1 st respondent shall forward the same along with the relevant file to the competent authority for adjudication, who shall pass appropriate orders, with notice to the petitioner, within a period of two months from the date of receipt of the objection.

7. Pending adjudication, the goods detained pursuant to Ext.P4 notice shall be released to the petitioner, on the petitioner depositing 50% of the total amount demanded in Ext.P4 and furnishing adequate security to the satisfaction of the 1 st respondent for the balance sum in the form of a simple bond with sureties.”

3. Seeking review of the judgment dated 10.5.2016 in W.P.(C)No.17194 of 2016, to the extent the petitioner is directed to deposit 50% of the total amount demanded in Ext.P4 and to furnish adequate security to the satisfaction of the 1 st respondent for the balance sum in the form of a simple bond with sureties, for releasing the goods detained pursuant to Ext.P4 notice, he is before this Court in this Review Petition, contending that there is error apparent on the face of record, warranting review of the judgment dated 10.5.2016.

4. Heard the arguments of the learned counsel for the petitioner and also the learned Senior Government Pleader for the 1st respondent.

5. In the Writ Petition, the specific stand taken by the petitioner was that he is constructing a residential building after obtaining necessary permit from the Panchayat and as per Ext.P1 building plan. For the said purpose, he had purchased pincoda wood, vide Ext.P3 purchase bill dated 2.5.2016, from the 2 nd respondent, who is a registered dealer both under the KVAT Act and the CST Act. On transportation, the goods were intercepted by the 1 st respondent at Tirur, resulting in issuance of Ext.P4 notice dated 2.5.2016 under Section 47(2) of the KVAT Act, requiring the petitioner to remit a sum of ₹2,03,000/- (₹1,01,500/- as security deposit and ₹1,01,500/- as penalty) in lieu of detention. The said notice was under challenge in W.P.(C) No.17194 of 2016.

6. The reasons stated in Ext.P4 notice for invoking the provisions under Section 47(2) of the KVAT Act were that, the vehicle was seen parked in front/premises of Akbar Saw Mill, Tirur; and that no documents were produced by the driver of the vehicle for transportation of the goods, i.e., imported pincoda. In the said circumstances, the 1 st respondent estimated the value of the goods at ₹3,50,000/- and demanded security deposit and penalty.

7. In the judgment dated 10.5.2016, after referring to the decision of this Court in

Interfield Laboratories v. State of Kerala, 2016 (1) KLT 945

it was held that the 1 st respondent cannot be found fault with in intercepting the goods for the reasons stated in Ext.P4 notice issued under Section 47(2) of the KVAT Act and demanding security in lieu of detention of goods. It was thereafter that, the Writ Petition was disposed of by the judgment dated 10.5.2016, the operative portion of which has already been extracted hereinbefore.

8. In this Review Petition, the main ground raised by the petitioner is that, he had purchased pincoda wood from the 2 nd respondent for purely domestic purpose for constructing doors and windows for his residential building. Though Ext.P3 purchase bill was produced at the time of inspection, it was without noticing the same that, the 1 st respondent issued Ext.P4 notice. According to the petitioner, he is ready and willing to deposit one-half of the security deposit and execute bond with sureties for the remaining one-half of the security deposit and for the entire penalty amount and as such the judgment dated 10.5.2016 may be modified by permitting him to release the goods by making the deposit and executing bond as above.

9. In

Parsion Devi and others v. Sumitri Devi and others; (1997) 8 SCC 715

the Apex Court held that, there is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter can be corrected by exercise of the review jurisdiction. Later, in