K.E. AGRO PRODUCTS (P) LTD. v. STATE TAX OFFICER (IB)-I SGST DEPARTMENT; DEPUTY COMMISSIONER (IB) SGST DEPARTMENT; COMMISSIONER OF STATE TAX SGST DEPARTMENT

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE S.V.BHATTI`** ## **`&`** ## **`THE HONOURABLE MR.JUSTICE BASANT BALAJI`** ``` FRIDAY, THE 8[TH] DAY OF APRIL 2022 / 18TH CHAITHRA, 1944 ``` ## **`WA NO. 177 OF 2022`** ## **`WP(C) 20455/2021 OF HIGH COURT OF KERALA`** ## **`APPELLANT/S:`** ``` K.E. AGRO PRODUCTS (P) LTD. VIII/188B, ARPOOKKARA WEST, KOTTAYAM - 686 008, REPRESENTED BY ITS MANAGING DIRECTOR, THOMAS MATHEW. ``` ``` BY ADVS. HARISANKAR V. MENON MEERA V.MENON ``` ## **`RESPONDENT/S:`** - `1 THE STATE TAX OFFICER (IB)-I SGST DEPARTMENT, TAX TOWERS, 5TH FLOOR, KARAMANA, THIRUVANANTHAPURAM - 695 002.` - `2 THE DEPUTY COMMISSIONER (IB) SGST DEPARTMENT, TAX TOWERS, 5TH FLOOR, KILLIPPALAM, KARAMANA, THIRUVANANTHAPURAM - 695 002.` - `3 THE COMMISSIONER OF STATE TAX SGST DEPARTMENT, TAX TOWERS, KILLIPALAM, KARAMANA, THIRUVANANTHAPURAM - 695 002.` ## **`OTHER PRESENT:`** ## `SPL. GP MOHD RAFIQ` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 31.3.2022, ALONG WITH WA.178/2022, 181/2022, THE COURT ON 08.04.2022 DELIVERED THE FOLLOWING: ``` ``` WA NO. 177, 178 and 181 OF 2022 ``` -2- # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE S.V.BHATTI ``` ## **`&`** ## **`THE HONOURABLE MR.JUSTICE BASANT BALAJI`** ``` FRIDAY, THE 8[TH] DAY OF APRIL 2022 / 18TH CHAITHRA, 1944 ``` ## **`WA NO. 178 OF 2022`** ``` WP(C) 20453/2021 OF HIGH COURT OF KERALA ``` ## **`APPELLANT/S:`** ``` LILLYKUTTY MATHEW AGED 62 YEARS PROPRIETRIX, M/S.ST.MARY'S PADDY PROCESSING UNIT, ARPOOKARA WEST, KOTTAYAM - 686 008. ``` ``` BY ADVS. HARISANKAR V. MENON MEERA V.MENON ``` ## **`RESPONDENT/S:`** - `1 THE STATE TAX OFFICER (IB)-I SGST DEPARTMENT, TAX TOWERS, 5TH FLOOR, KARAMANA, THIRUVANANTHAPURAM - 695 002.` ``` 2THE DEPUTY COMMISSIONER (IB) SGST DEPARTMENT, TAX TOWERS, 5TH FLOOR, KILLIPPALAM, KARAMANA, THIRUVANANTHAPURAM - 695 002. ``` - `3 THE COMMISSIONER OF STATE TAX SGST DEPARTMENT, TAX TOWERS, KILLIPALAM, KARAMANA, THIRUVANANTHAPURAM - 695 002.` ``` SPL. GP MOHD RAFIQ ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 31.3.2022, ALONG WITH WA.177/2022 AND CONNECTED CASES, THE COURT ON 08.04.2022 DELIVERED THE FOLLOWING: ``` ``` WA NO. 177, 178 and 181 OF 2022 ``` -3- # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE S.V.BHATTI ``` ## **`&`** ## **`THE HONOURABLE MR.JUSTICE BASANT BALAJI`** ``` FRIDAY, THE 8[TH] DAY OF APRIL 2022 / 18TH CHAITHRA, 1944 ``` ## **`WA NO. 181 OF 2022`** ## **`APPELLANT/S:`** ``` THOMAS MATHEW AGED 67 YEARS PROPRIETOR, M/S.J.M.J.MODERN RICE MILL, VIII/188A, ARPOOKARA WEST, KOTTAYAM - 686 008. ``` ``` BY ADVS. HARISANKAR V. MENON MEERA V.MENON SREEJITH R.NAIR ``` ## **`RESPONDENT/S:`** - `1 THE STATE TAX OFFICER (IB)-I SGST DEPARTMENT, TAX TOWERS, 5TH FLOOR, KARAMANA, THIRUVANANTHAPURAM - 695 002.` ``` 2THE DEPUTY COMMISSIONER (IB) SGST DEPARTMENT, TAX TOWERS, 5TH FLOOR, KILLIPPALAM, KARAMANA, THIRUVANANTHAPURAM - 695 002. ``` ``` 3THE COMMISSIONER OF STATE TAX SGST DEPARTMENT, TAX TOWERS, KILLIPALAM, KARAMANA, THIRUVANANTHAPURAM - 695 002. ``` ``` SPL. GP MOHD RAFIQ ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 31.3.2022, ALONG WITH WA.177/2022 AND CONNECTED CASES, THE COURT ON 8.4.2022 DELIVERED THE FOLLOWING: ``` ``` WA NO. 177, 178 and 181 OF 2022 ``` -4- ## **S.V.BHATTI & BASANT BALAJI, JJ.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - `WA NO. 177, 178 and 181 OF 2022` - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** (Dated this the 8[th] day of April 2022) ## Basant Balaji J., WA No.177 of 2022, WA. No.178 of 2022 and WA No.181 of 2022 are filed against the judgment in WP(C) Nos.20455 of 2021, No.20453 of 2021 and WP(C) No.20447 of 2021 respectively. Since a common question arose in all the three Writ Petitions, the learned Single Judge passed a common judgment. The main issue that raised was regarding the grant of copy of statements recorded by the respondents in the course of investigation and non collection of tax for outward supply of rice. 2. The appellants in all the three appeals are assessees under the CGST/SGST Act, 2017 (for short ‘the Act’). They are engaged in outward supply of rice and bran. In connection with the enquiry, the Sales Tax Officer issued **`WA NO. 177, 178 and 181 OF 2022`** -5- summons to one of the Directors of the company, Sri.Melvin T Mathew. Pursuant to the summons, he appeared before the first respondent and statement was recorded from him. Thereafter, the petitioners in all the writ petitions filed separate applications requesting for issuance of the statement recorded from Sri. Melvin T Mathew. A further request was also made for transfer of the files of enquiry to the place of the appellants/petitioners choice. Appellants' request were turned down by the respondent as 'cannot be considered'. No specific reasons are stated in the rejection orders. 3. The appellants challenged rejection orders before the learned Single Judge in the respective writ petitions. A counter affidavit was filed by the respondent in W.P.(C) No.20453 of 2021 stating that the information gathered during the enquiry was very crucial and sensitive in nature and the issuance of copies or sharing of extracts of the statements at the present stage would prejudicially affect the investigation. The learned Single Judge referring to Section 67(5) and Section 70 of the Act came to the conclusion that the only reason stated for denying the ``` WA NO. 177, 178 and 181 OF 2022 ``` -6- request for the issuance of the copies of the statement recorded is that 'cannot be considered'. The proper Officer did not have a case that giving copy of the statement would cause prejudice to the investigation. Occular 4. The learned Single Judge relying on the decisions reported in **Commissioner of Police, Bombay v. Gordhandas Bhanji (AIR 1952 SC 16)** and **Mohinder Singh Gill v. Chief Election Commissioner, New Delhi [(1978) 1 SCC 405]** , found that an affidavit cannot enlarge or supplement reasons which the order did not contain at the time when it was issued. Thereafter, the learned Single Judge held that Ext.P10 is liable to be set aside as the reason stated is not sufficient and the first respondent was directed to re-consider the application of the petitioners/appellants for giving a copy of the statement obtained in the course of investigation. Regarding the transfer of files, the counsel for the appellants submitted that since the Government has eased the restrictions imposed during the time of covid-19 pandemic, they are not pressing the transfer of files. 5. A perusal of Ext.P10 would show that the officer **`WA NO. 177, 178 and 181 OF 2022`** -7- has not cited any reason for not giving the copies of the statements sought for by the appellants. But in the counter affidavit the contention taken is that Section 67(5) of the Act specifically provides that the Officer can deny issuance of copies of statement if the same is prejudicial to the investigation. As already held above the affidavit cannot supplement the reasons which are not there in the order. On going through the judgment of the learned Single Judge, the learned Single Judge has rightly exercised his jurisdiction and set aside Ext.P10 and directed the officer to pass fresh orders in the request submitted by the appellants for issuance of copies of the statements. The learned Single Judge has in fact gone a step ahead and discussed the relevant provisions of law under the Act and made passive observations which may be prejudicial to the appellants. In view of the matter, since the learned Single Judge has set aside Ext.P10 and directed re-consideration, we are of the considered opinion that the first respondent who is directed to re-consider the application has to independently consider the request made by the appellants in tune with the provisions of the Act untrammeled by the **`WA NO. 177, 178 and 181 OF 2022`** -8- observations made by the learned Single Judge in the judgment under appeal. Accordingly, the Writ appeals are disposed of, directing the first respondent to take up the applications submitted by the appellants for issuance of the statements recorded during the course of investigation and to pass final orders untrammeled by the observations made by the learned Single Judge in the impugned judgment. Since the judgment impugned has been passed more six months prior and the investigation is going on, the first respondent shall take into account the present stage of the investigation while disposing of the applications submitted by the appellants. sd **S.V.BHATTI, JUDGE** **sd BASANT BALAJI, JUDGE** _dl/_