2018 (3) TMI 542 - HC - VAT and Sales Tax

Principle of mutuality - activities undertaken by the Association amounting to works contract - penalty - Held that - The Association is an entity registered under the Societies Registration Act, 1860 - No proceedings, whatsoever, is pending against the petitioner, who is a member of the Association. In the absence of any proceedings against the petitioner, it was unnecessary for the petitioner to file an affidavit in the nature of Ext.P1 before the first respondent and it was unnecessary for the first respondent to issue a notice in the nature of Ext.P2 to the petitioner - petition dismissed - decided against petitioner.

Summary

Issues:
1. Tax liability of a residential welfare association for construction activities without VAT registration.
2. Validity of notices issued by the Intelligence Officer regarding penalty under the Kerala Value Added Tax Act.
3. Challenge against the notice issued to a member of the association for construction activities.

Analysis:

1. The case involves a residential welfare association formed by 46 persons, functioning on a principle of mutuality for the welfare of its members. The Intelligence Officer found that the association was constructing buildings for its members without VAT registration, leading to potential works contract tax liability. Notices (Exts.P4 to P7) were issued to the association for penalty under the Kerala Value Added Tax Act for the periods from 2011-12 to 2014-15.

2. The association challenged the notices in a writ petition, which directed them to raise objections against the proposal. Subsequently, a member of the association filed an affidavit stating that he constructed his house using his resources, with the association providing only necessary assistance. The first respondent issued a notice (Ext.P2) to the member, stating that his affidavit cannot be considered based on documents provided by the association, and scheduled a hearing.

3. The court heard arguments from the petitioner's counsel and the Government Pleader. The Government Pleader informed the court about the scheduled hearings and adjournments requested by the association representatives to clarify their liability under the Act. Since no proceedings were pending against the petitioner individually, the court found the petition devoid of merit and dismissed it, concluding that it was unnecessary for the petitioner to file the affidavit or for the first respondent to issue the notice to the petitioner.