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High Court of KeralaSingle JudgeWrit petition disposed; order directed to retur...

Hotel Green Land Residency v. Intelligence Officer, Squad No.III, Commercial Taxes, Perumanoor; Deputy Commissioner (Intelligence), Department of Commercial Taxes; Commercial Tax Officer (LT), Office of the Deputy Commissioner, Commercial Taxes, Ernakulam

Case / Petition Number:WP(C).No. 24124 of 2015 (M)
Neutral Citation:/null

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • A. M. Shaffique
Judgment Date
2016-10-06
Court Decision / Holding
The first respondent is directed to return the seized documents to the petitioner within two weeks from the date of receipt of a copy of the judgment; the writ petition is disposed accordingly.
Final Disposition
Writ petition disposed; order directed to return seized documents within two weeks.

Parties to the Case

Appellants / Petitioners

  • Hotel Green Land Residency

Respondents

  • Intelligence Officer, Squad No.III, Commercial Taxes, Commercial Tax Complex, Perumanoor, Ernakulam
  • Deputy Commissioner (Intelligence), Department of Commercial Taxes, Ernakulam at Edappally
  • Commercial Tax Officer (LT), Office of the Deputy Commissioner, Commercial Taxes, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri R. Muralidharan (Aroor)

Counsels for Respondents

  • • Sri V. K. Shamsudheen

Case Synopsis & Summary

Hotel Green Land Residency, a hotelier operating from Ernakulam, filed WP(C) 24124 of 2015 challenging two notices (Exhibits P8 and P9) issued by the Intelligence Officer under the Kerala Tax on Luxuries Act (KTL) and the Kerala Value Added Tax Act (KVAT), and seeking the return of seized records listed in Exhibit P1. The petitioner contends that during a shop inspection on 5 July 2014, documents were seized and have not been returned despite statutory time limits: under Section 13(6) of the KTL Act, records may be retained for 30 days from seizure unless permitted by the Government, and under Section 44(6) of the KVAT Act, records may be retained for up to 180 days, with a further extension of up to 180 days with authorization. The petitioner asserts that the statutory periods have elapsed and that no authorizing order exists, rendering the continued detention unlawful and preventing a proper response to notices under Sections 17A (KTL) and 67(1) (KVAT) for 2013-14 and 2014-15. The petitioner relies on Sheen Golden Jewels (India) Pvt. Ltd. v. Intelligence Officer, Pathanamthitta (2013) 3 KHC 72, to compel return of seized materials. Respondents contend that production of books could justify return, and that retention may be necessary for potential prosecution. The High Court directs the return of seized documents within two weeks of receipt of a copy of the judgment, emphasizing statutory mandates.

Provisions of Law Cited

Kerala Tax on Luxuries Act, 1976, s.13(6)Kerala Value Added Tax Act (KVAT Act), s.44(6)Kerala Tax on Luxuries Act, 1976, s.17AKVAT Act, s.67(1)Kerala Value Added Tax Rules, 2005, Rule 63(8)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that seized records must be returned promptly under statutory timelines (30 days under S.13(6) of the KTL Act and 180 days under S.44(6) of the KVAT Act, with possible extensions only on government permission). The retention of documents beyond these periods prevents the petitioner from effectively replying to Ext.P6–P7 notices and defending against Ext.P2–P5 proposals. The petitioner relies on Sheen Golden Jewels to demand return of seized materials and argues that no order justifying detention exists. The writ seeks certiorari to quash Ext.P8–P9 notices, and mandamus to return records and to prevent unlawful orders without opportunity to object.

Contentions of Respondents

The respondents submit that if the books for the relevant years are produced, records may be returned; retention may be warranted to preserve evidence for potential prosecution; they argue that notices require a proper opportunity to respond and that detention can be justified where there is ongoing or potential prosecution. The Government Pleader emphasizes compliance with statutory timelines and due process.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Sheen Golden Jewels (India) Pvt. Ltd. v. Intelligence Officer, Pathanamthitta and others2013 (3) KHC 72PositiveThe court cites this precedent to direct the return of seized documents and to permit use/photocopying, illustrating the proper handling and timely return of seized records.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **THURSDAY, THE 6TH DAY OF OCTOBER 2016/14TH ASWINA, 1938** ## **WP(C).No. 24124 of 2015 (M)** **----------------------------** ## **PETITIONER(S): -------------** **HOTEL GREEN LAND RESIDENCY, MONASTERY ROAD,KARIKKAMURI,ERNAKULAM, COCHIN, PIN 682011 REPRESENTED BY ITS GENERAL MANAGER,M.G.NAIR.** **BY ADV. SRI.R.MURALIDHARAN (AROOR)** ## **RESPONDENT(S):** **--------------** **1. THE INTELLIGENCE OFFICER, SQUAD NO.III, COMMERCIAL TAXES, COMMERCIAL TAX COMPLEX, PERUMANOOR, ERNAKULAM,PIN 682 015.** **2. THE DEPUTY COMMISSIONER(INTELLIGENCE), DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM AT EDAPPALLY, PIN 682 024.** **3. THE COMMERCIAL TAX OFFICER(LT), O/O.THE DEPUTY COMMISSIONER,COMMERCIAL TAXES, ERNAKULAM,COCHIN, PIN 682 015.** ## **BY GOVERNMENT PLEADER SRI.V.K.SHAMSUDHEEN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** **WP(C).No. 24124 of 2015 (M) ----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -----------------------** **EXHIBIT.P1-TRUE COPY OF THE SHOP INSPECTION REPORT NO.238565 PREPARED BY THE 1ST RESPONDENT, DATED 05/07/2014.** **EXHIBIT.P2- TRUE COPY OF THE NOTICE ISSUED UNDER S.17A OF THE KTL ACT, BY THE 1ST RESPONDET DT.23.05.2015 FOR 2013-2014.** **EXHIBIT.P3- TRUE COPY OF THE NOTICE ISSUED UNDER S.67 (1) OF THE KVAT ACT, BY THE 1ST RESPONDENT DT.23.05.2015 FOR 20132014.** **EXHIBIT.P4- TRUE COPY OF THE NOTICE ISSUED UNDER S.17A OF THE KTL ACT, BY THE 1ST RESPONDENT 23.05.2015 FOR 2014-2015.** **EXHIBIT.P5- TRUE COPY OF THE NOTICE ISSUED UNDER S.67 (1) OF THE KVAT ACT, BY THE 1ST RESPONDENT DT.23.05.2015 FOR 20142015.** **EXHIBIT.P6- TRUE COPY OF TYE APPLICATION FILED BY THE PETITIONER FOR RETURN OF RECORDS, BEFORE THE 1ST RESPONDENT DATED 03.07.2015.** **EXHIBIT.P7- TRUE COPY OF THE APPICATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 04.07.2015.** **EXHIBIT.P8- TRUE COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT UNDER KVAT ACT, DATED 01.08.2015.** **EXHIBIT.P9- TRUE COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT UNDER KTL ACT, DATED 01.08.2015.** **RESPONDENT(S)' EXHIBITS -----------------------** ## **A.M. SHAFFIQUE, J.** ## **-------------------------------------** W.P.(C) No. 24124 of 2015 -------------------------------------Dated this the 6[th] day of October, 2016 ## **JUDGMENT** Petitioner has approached this Court inter alia seeking the following reliefs: “(a) Issue a writ of certiorari or any other appropriate writ, order, quashing Exhibit P8 and P9 notices issued by the first respondent; (b) issue a writ of mandamus or any other appropriate writ, order or direction, directing the first respondent to return the entire records and other documents as it is listed in Ext.P1 forthwith to the petitioner; (c) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the first respondent not to pass any orders confirming the proposal made in Ext.P2 to P5 notices, without affording sufficient opportunity to the petitioner to file objections as per law, after returning the seized records.” 2. The main contention urged by the petitioner is with reference to the delay on the part of the respondent W.P.(C) No. 24124 of 2015 -2- authorities in giving back the documents that had been seized by them during an inspection conducted on 5.7.2014. It is stated that the maximum period available under the Kerala Tax on Luxuries Act for detaining the documents is 45 days and that too with permission from such authority as may be prescribed by the Government. Even under the Kerala Value Added Tax Act, similar provisions are available, especially, Section 44 (6), which obliges the officer to return the documents within a period of 180 days and with permission from the competent authority, a further period of 180 days. It is stated that both the periods had already been over and despite the same, no action has been taken by the respondents to return the documents. It is stated that in the absence of such documents, the petitioner is unable to file a proper reply to notices Ext.P6 and P7 3. Learned counsel for the petitioner also relies upon the judgment of this Court in **Sheen Golden Jewels (India) Pvt.Ltd v. Intelligence Officer, Pathanamthitta and** W.P.(C) No. 24124 of 2015 -3- **others [2013 (3) KHC 72]** , wherein this Court having occasion to consider the effect of Section 44 (6) of the Act held at paragraph 6 as under: “6. The upshot of the above discussion is that the first respondent Intelligence Officer is liable to be directed by the issue of a writ of mandamus to return the documents seized under Ext.P3 receipt to the petitioner and I do so. The first respondent is at liberty to take extracts therefrom as may be considered necessary including its photocopy in the light of Rule 63 (8) of the Kerala Value Added Tax Rules, 2005. The documents shall be returned to the petitioner on proper acknowledgment which shall mention the details of the records returned after affixing signature or seal wherever required. The entire exercise shall be completed within a period of one month from the date of production of a copy of the judgment by the petitioner before the first respondent. Nothing said in this judgment will hamper the criminal prosecution if any launched by the respondents against the petitioner provided the same is otherwise lawful.” 4. Section 13(6) of the Kerala Tax on Luxuries Act, 1976, reads as under: W.P.(C) No. 24124 of 2015 -4- “13(6):The accounts, registers, records or other documents seized under the sub-section (5) shall not be retained by the assessing authority beyond a period of thirty days from the date of seizure except with the permission of such authority as may be specified by the Government in this behalf, unless they are required for any prosecution under this Act. Provided that the authority specified by the Government under this sub-section shall not give permission to retain such accounts, registers, records or other documents beyond a period of forty five days from the date of the seizure.” Section 44 (6) of the Kerala Value Added Tax Act, 1976 reads as under: ## “ **44. Power to order production of accounts and power of entry, inspection etc** .-- - (1) xxx - (2) xxx - (3) xxx - (4) xxx - (5) xxx (6) The accounts, registers, records or other documents seized under sub-section (5) shall not be retained by the officer seizing them beyond a period of one hundred and eighty days from the date of the W.P.(C) No. 24124 of 2015 -5- seizure except with the permission of the next higher authority, unless they are required for any prosecution under this Act. Provided that the next higher authority shall not give permission to retain such accounts, registers, records or other documents beyond a period of one year from the date of the seizure.” 5. Learned Government Pleader however submits that if the books of account for the respective years are produced, the officer shall return the documents to the petitioner. I do not think that when a provision had been incorporated under the statute, which clearly indicates that the documents seized has to be returned within a specified time, the officer can ignore the said provision and retain the documents unless permitted by the statute. The officer cannot be insist that unless the books of accounts are produced, the documents will not be returned. The documents can be retained only in an event where they intend to proceed with the prosecution against the applicant. Insofar as no material had been produced to show that there is any intention to proceed with W.P.(C) No. 24124 of 2015 -6- prosecution in these matters, such a situation is presently ruled out. Then the only question is whether the officer can detain the documents produced without any valid explanation. In the case on hand, there is no order passed by the competent authority to detain the documents. Under such circumstances, the respondent authorities were bound to comply with the statutory provisions. Since they have not complied with the statutory provision, I am of the view that a direction can be issued. Accordingly, this writ petition is disposed of as under: The first respondent shall return the documents seized from the petitioner within a period of two weeks from the date of receipt of a copy of this judgment. **Sd/A.M. SHAFFIQUE JUDGE** Scl/06.10.2016