Dream Appliances Perumpadanna, North Paravur 680513 vs State Tax Officer

Bechu Kurian Thomas, J

Petitioner challenges the order of the Assessing Officer rejecting its application for refund of tax allegedly due to it for the assessment years 2010-11 and 2011-12.

Petitioner is a partnership firm engaged in the business of trading in electronic goods. It was an assessee under the erstwhile Kerala Value Added Tax Act,2003 (hereinafter referred to as ‘Act’ for short). For the assessment year 2010-11, petitioner had filed its returns, which is deemed to have been completed under Section 21 of the Act and the same was finalised as per order dated 19.06.2013. For the assessment year 2011-12, though notice was issued under Section 25 (1) of the Act, the Assessing Authority did not proceed further after the notice. In the meanwhile, petitioner alleges to have filed application in Form No.21CC for the years 2010-11 and 2011-12, claiming refund of Rs.63,321/- and Rs.1,58,201/- as refund due to it.

According to the petitioner, though repeated requests were made claiming refund in 2011 and 2012, refund was not granted under one pretext or the other. In the meantime, when the assessment for the year 2014-15 was completed and demand of tax was made, petitioner approached the Assessing Authority requesting to adjust the refunds due, for the prior assessment years against the dues of the year 2014-15. Even at that point of time, petitioner filed Form 21CC and further submitted request letters in 2016 and again in 2021. However, instead of issuing the refund due to the petitioner, an order was served on it rejecting the claim for refund for the reason that there was no evidence to show filing of application for refund. It was observed in the impugned order that there was no pending refund applications relating to the petitioner for the year 2010-11 and 2011-12. Aggrieved by the order rejecting the claim for refund, petitioner has preferred this writ petition, challenging Ext.P12 order.

I have heard Smt.M.K.Hajara, learned Counsel for the petitioner as well as Smt.M.M.Jasmin the learned Government Pleader.

Learned Government Pleader submitted that the impugned order is appealable under Section 55 of the Act and that the same contains several factual disputes, which cannot be decided by this Court, invoking the jurisdiction under Article 226 of the Constitution of India. Learned Government Pleader invited my attention to the specific findings in Ext.P12 and submitted that the order was issued after verifying the records produced and that unless the disputed facts are re appreciated by the Appellate Authority, a contrary finding cannot be entered into exercising the jurisdiction under Article 226 of the Constitution of India.

I have considered the rival contentions.

A perusal of the impugned order Ext.P12 shows that the Assessing Officer has considered the contention of the petitioner and entered into a finding after perusing the records produced. It is held in the impugned order that the delivery book produced by the petitioner and alleged to have been maintained by the accountant contains only a vague marking with ink as evidence of acknowledgment from the office of the State Tax Officer. It was after an appreciation of the facts and records that it was concluded that the delivery book did not contain any identifiable name, authenticating signature or even the designation of the official apart from absence of office seal. It is clear from a reading of the impugned order that the findings have been entered into by the 1st respondent after appreciating the facts and circumstances arising in the case. In order to arrive at a conclusion that the findings in Ext.P12 are incorrect, the same requires an appreciation of disputed facts.

As rightly contended by the learned Government Pleader, since disputed facts are required to be appreciated, normally the remedy is for the assessee to move the Appellate Authority rather than to approach this Court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India.

Though an alternative remedy is not a complete bar for this Court to exercise its jurisdiction under Article 226 of the Constitution of India, burden is upon the assessee to prove that circumstances exists warranting an interference by this Court. No such circumstances have been brought to my notice to warrant the exercise of jurisdiction under Article 226 of the Constitution of India. Since the contentions raised by the petitioner can effectively be considered by the Appellate Authority, it is only appropriate that petitioner pursues its statutory remedies rather than invoke the jurisdiction under Article 226 of the Constitution of India.

Accordingly, reserving the liberty of the petitioner to pursue its statutory remedies, this writ petition is dismissed. It is clarified that petitioner will be entitled to exclude the period spent before this court in this writ petition from 14.12.2021 till the date of this judgment.