The petitioner has approached this Court mainly challenging the course and proceedings pursued by the respondents leading to Exts.P7 & P8 orders, which according to the petitioner are void ab initio, unenforceable and totally without jurisdiction by the concerned authority. The prayers are in the following terms;
“(i) declare that Exhibit P7 and P8 orders passed by the 2nd respondent are without jurisdiction, void ab-initio and unenforceable in law; and
(ii) Issue a writ of mandamus or any other appropriate writ, direction or order commanding the respondents from to refrain from enforcing or in any other manner implementing Exts.P7 and P8 orders; and
(iii) Issue a writ of certiorari or any other appropriate writ, direction or order quashing Exts.P9 and P10 notices issued under the Kerala Revenue Recovery Act, 1968.”
2. The case projected by the petitioner shows that, the petitioner is doing business in Jewellery as a partnership firm and has been satisfying the tax availing the benefit of compounded rate under Section 8(f) for the KVAT Act for the years 2008-09 to 2011-12. While so, there was an inspection at the premises of the petitioner on 17.01.2009 and alleging non-maintenance of proper records and suppression of turnover etc., penalty was imposed upon the petitioner under Section 67 of the KVAT Act. The said order was subjected to challenge before the first appellate authority. The first appellate authority modified the same by passing Ext.P2 order on 06.10.2010. Being aggrieved of the same, the petitioner has approached the Tribunal in the second round and interim order of stay has been obtained vide Ext.P3. The matter is pending consideration. In the meanwhile, merely based on the penalty order and even without any regard to the modification made by the first appellate authority, the assessment for the year 2008-09 was completed by the 2nd respondent by passing Ext.P4 order on 23.12.2013. The petitioner has filed appeal before the concerned authority and obtained interim order of stay. The said appeal is also pending. As a matter of chain reaction, the 2nd respondent passed Exts.P5, P7 and P8 orders unilaterally re-fixing the turnover for the years 2009-10, 2010-11 & 2011-12 with reference to Ext.P4 assessment order. In respect of the year 2009-10, the learned counsel for the petitioner submits that, an appeal has been preferred and interim stay has been obtained as per Ext.P6 order on 30.05.2014. Surviving grievance is with regard to Exts.P7 and P8 orders in respect of the assessment years 2010-11 & 2011-12.
3. Heard the learned counsel for the petitioner and the learned Government Pleader appearing for the respondents in detail.
4. In the course of further proceedings, the petitioner has produced some additional documents as well, ie., the reply submitted by the petitioner in response to the pre-assessment notice and the demand notice as per Exts.P11 to P16 along with I.A. No.16431/2014. The main argument made by the learned counsel for the petitioner is that, the impugned orders are per se wrong and illegal in all respects, mainly for the reason that the concerned respondents did not have the power or jurisdiction to have passed the impugned order.
5. It is true that, this Court is having jurisdiction to deal with the issue invoking remedy under Article 226 in appropriate cases and existence of alternate remedy is no bar. But the instant case, it is to be noted that, the petitioner has already moved the appellate authority in respect of the assessment year 2009-10 by filing necessary appeals and has obtained interim order of stay. The facts and figures will have to be considered in relation to the proceedings which are already under challenge by way of appeal before the appellate authority. This being the position, the matter has to be considered by the Departmental authorities at the first instance, before such an exercise is undertaken by this Court. In other words, the question is whether this Court should exercise the discretionary jurisdiction in the present case with reference to the plea as to absence of jurisdiction, in respect of the assessment years 2010-11, 2011-12. It is also to be noted in this context that, pendency of matters before this Court is alarmingly on increase and writ petitions are being filed, instead of availing the alternative remedy. This Court does not find it as a fit case to call for interference, adding one more to the existing files. More so, when the petitioner is having an effective alternative remedy and the question of disputed jurisdiction and such other issues can also be raised before the competent authority. Further, the petitioner has already moved the appellate authority and obtained interim orders in respect of the previous assessment years. In the said circumstances, interference is declined and the writ petition stands dismissed.
However, so as to enable the petitioner to pursue such exercise, coercive proceedings, if any, shall be kept in abeyance for a period of one month.
Sd/-
P.R. RAMACHANDRA MENON, JUDGE.
Pn