JUDGMENT : [WP(C).7122/2019, WP(C).9073/2019, WP(C).11489/2019, WP(C).11524/2019 & WP(C).19762/2019, ] As all these writ petitions involve a common issue, they are taken up for consideration together and disposed by this common judgment. 2. W.P.(C).Nos.7122/2019 and W.P.(C).No.11524/2019 have been filed by M/s.DLF Southern Town Private Limited impugning (i) the penalty order dated 31.1.2019 passed against it by the Intelligence Officer under Section 67(1) of the Kerala Value Added Tax Act [hereinafter referred to as the 'KVAT Act'] and (ii) the assessment order dated 30.3.2019 subsequently passed by the Assistant Commissioner (WC) in terms of Section 25(1) of the KVAT Act. W.P.(C).No.9073/2019 and W.P.(C).No.11489/2019 are filed by another entity namely, M/s.DLF Home Developers Limited challenging (I) the penalty order dated 26.2.2019 passed by the Intelligence Officer under Section 67(1) of the KVAT Act and (ii) the assessment order dated 30.3.2019 that was subsequently passed by the Assistant Commissioner (WC) under Section 25(1) of the KVAT Act. All the four writ petitions pertain to the assessment year 2012-13. W.P.(C).No.19762/2019 is one filed by M/s.DLF Home Developers Limited challenging the penalty order dated 26.2.2019 passed by the Intelligence Officer under Section 67(1) of the KVAT Act, for the assessment year 2013-14. It would appear that there is no assessment order passed in relation to the petitioner for the said assessment year. 3. The petitioners aforementioned are engaged in the activity of construction of apartments and sale of the same to individual buyers. It is not in dispute that the construction of apartments was carried out through sub-contractors, and for the work carried out by the sub-contractors, tax was paid to the Department by the sub-contractors. The sub-contractors thereafter issued the necessary Form 20H certificates to the petitioners, evidencing payment of tax at their end, and the turnover on which such tax was paid by them. This was to enable the petitioners to claim deduction of the said turnover in the assessments completed against them. The petitioners did not, however, incorporate the details of these certificates in the returns that were filed by them before the respondents. This was to enable the petitioners to claim deduction of the said turnover in the assessments completed against them. The petitioners did not, however, incorporate the details of these certificates in the returns that were filed by them before the respondents. Further, although the petitioners sought for a permission to revise the returns for the said assessment years, based on the certificates that were subsequently obtained by them from the sub-contractors, the said request for revision of returns was rejected by the respondents inter alia on the ground that penal proceedings had been initiated against the petitioners in the meanwhile, and therefore, there was a bar to the revision of returns for the said assessment year. The orders rejecting the request for revision of returns have been impugned by the petitioners in W.P.(C).No.11447/2019 and W.P. (C).No.11461/2019, which are dealt with in a separate judgment delivered today. 4. The impugned assessment orders in W.P. (C).No.11524/2019 and W.P.(C).No.11489/2019 reveal that, although in reply to the pre-assessment notices received by them, the petitioners had furnished the details of the Form 20H certificates that had been obtained by them from the sub-contractors, and claimed deduction of the amounts covered by the said certificates while arriving at their total taxable turnover for the purposes of assessment, the Assessing Authority refused to look into the said documents solely for the reason that the details of the said documents had not been furnished by the petitioners along with the returns that were filed for the relevant assessment year. It is not the case of the assessing authority that the reply preferred by the assessee was not received by it or that the assessee had not produced material to justify its claim for deduction of the amounts covered by the certificates from the total taxable turnover assessed. 5. As regards W.P.(C).No.7122/2019 and W.P. (C).No.9073/2019, as already noticed above, the challenge in these writ petitions is against the penalty orders passed by the Intelligence Officer under Section 67(1) of the KVAT Act. The said orders have been passed even prior to the assessment proceedings being completed by the Assessing Authority under the KVAT Act. 5. As regards W.P.(C).No.7122/2019 and W.P. (C).No.9073/2019, as already noticed above, the challenge in these writ petitions is against the penalty orders passed by the Intelligence Officer under Section 67(1) of the KVAT Act. The said orders have been passed even prior to the assessment proceedings being completed by the Assessing Authority under the KVAT Act. In the orders impugned in these writ petitions also, while in reply to the notices proposing penalty, the petitioners had brought to the notice of the Intelligence Officer concerned, that a substantial portion of the turnover taken for the purposes of the penalty proceedings had to be reduced by the amounts shown in the Form 20H certificates relied upon by them, the Intelligence Officer proceeded to ignore the same and, as in the case of the assessments aforementioned, chose not to rely on the said certificates produced by the petitioners solely for the reason that the details of the tax paid by the sub-contractors had not been furnished along with the returns that were filed by the petitioners for the assessment year in question. To the same effect is the order impugned in W.P.(C).No.19762/2019, where the only distinguishing fact is that it pertains to the assessment year 2013-14 where, in relation to the petitioner - M/s.DLF Home Developers Limited, there was no assessment order passed by the Assessing Authority for the said year. 6. The contention of Sri.Shivadass, the learned senior counsel appearing for the petitioners in all these writ petitions is essentially that, notwithstanding the fact that the details of the tax paid by the sub-contractors were not mentioned by the petitioner assessees in the returns that they had filed during the assessment years in question, there is no statutory provision that prevents the Assessing Officer from independently considering the statutory certificates that have been obtained from the sub-contractors, evidencing payment of tax, at their end, and in respect of the very same work on which the petitioners were assessed for the year in question. It is pointed out that, had the Assessing Officer perused the statutory certificates obtained from the sub-contractors, he would have been forced to effect a substantial reduction in the turnover estimated for the purposes of assessment, leading thereby to a reduced tax liability for the petitioners in their respective assessments for the assessment year 2012-13. It is pointed out that, had the Assessing Officer perused the statutory certificates obtained from the sub-contractors, he would have been forced to effect a substantial reduction in the turnover estimated for the purposes of assessment, leading thereby to a reduced tax liability for the petitioners in their respective assessments for the assessment year 2012-13. Similarly, assailing the penalty orders impugned in the writ petitions, it is the contention of the learned senior counsel that under Section 67 of the KVAT Act, the Intelligence Officer is not expected to embark upon a roving enquiry, that is more suited to the assessment procedure to be followed by the Assessing Authority, and if he does so, then that would be an exercise of estimation of turnover, which is not open to the Intelligence Officer while adjudicating penalty proceedings. Reliance is placed on the decisions of this Court in U.K. Monu Timbers (M/s.) v. State of Kerala - [ 2012 (3) KHC 111 ] and Flipkart Internet Private Limited and Another v. State of Kerala and Others - [ 2015 (5) KHC 522 ]. As regards the penalty order impugned in W.P. (C).No.19762/2019, it is the submission of the learned senior counsel that, for the assessment year 2013-14, there was no assessment completed in relation to the petitioner, and hence, for the reasons already stated above, in connection with W.P. (C).No.7122/2019 and W.P.(C).No.9073/2019, the impugned penalty orders cannot be legally sustained. 7. Counter affidavits have been filed by the respondents in all these writ petitions. In relation to the assessment orders that have been impugned, it is the stand of the respondents that the petitioner assessees had filed nil returns without showing any taxable or exempted turnover, and that, the consistent stand of the assessees was that they were not getting any turnover attributable to works contract, and that they were not receiving any consideration from the awarders towards the works contract. It was found, however, that the assessees were receiving amounts towards works contracts from the awarders, and inasmuch as there were no details shown by the assessees in their returns as regards tax paid by the sub contractors, the Assessing Authority could not be faulted for not considering the deductions claimed by the assessee at the time of hearing. It was found, however, that the assessees were receiving amounts towards works contracts from the awarders, and inasmuch as there were no details shown by the assessees in their returns as regards tax paid by the sub contractors, the Assessing Authority could not be faulted for not considering the deductions claimed by the assessee at the time of hearing. The decision of the Supreme Court in Larsen & Toubro v. State of Karnataka – [(2013) 65 VST 1] is sought to be distinguished by the respondents on the facts and circumstances of the case and the impugned orders of assessment are sought to be justified for the reasons contained therein. As regards the counter affidavit filed in the writ petitions impugning the orders of penalty, the stand taken by the respondents is that penalty proceedings are independent to assessment proceedings and, as in the case of the assessments completed against the petitioners, since the petitioners had not produced details regarding the tax paid by the sub-contractors along with the returns submitted by them for the relevant assessment year, the said details could not be looked into for the purposes of reducing the taxable turnover that was estimated for the purposes of imposition of penalty on the petitioners. The decision of the Supreme Court in Larsen & Toubro's case [supra] is once again distinguished on the facts and circumstances of the case. 8. I have considered the rival submissions and also perused the orders impugned in these writ petitions. I have also taken note of the decisions in U.K. Monu Timbers case and Flipkart [supra] cited across the bar. 9. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I am of the view that, inasmuch as the petitioners had, in the assessment proceedings before the Assessing Authority under the KVAT Act, produced the Form 20H certificates obtained by them from the sub-contractors, evidencing the turnover on which tax was paid by the sub-contractors, it was not open to the Assessing Authority to disregard the said material while completing the assessment in relation to the petitioners. As rightly pointed out by the learned senior counsel, there is no statutory prohibition in considering material that is produced by the assessee at the time of hearing before the Assessing Authority merely because the said material was not included in the return that was filed by the assessee for the assessment year in question. The role of an Assessing Authority under a Fiscal Statute is to consider all the material available before him, including the returns filed by the assessee, so as to arrive at a correct assessment of the turnover on which the assessee is to be subjected to tax. On the facts of the instant cases, the material produced by the assessees to support their claim for deduction of a substantial part of the turnover, on which, tax had already been paid by their sub-contractors, ought to have been considered by the Assessing Authority while competing the assessment in relation to the petitioners. The non-consideration of the said material by the Assessing Authority, in my view, vitiates the assessment orders that are impugned in these writ petitions. I accordingly set aside the impugned assessment orders in W.P. (C).No.11524/2019 and W.P.(C).No.11489/2019, and direct the Assessing Authority to complete the assessment afresh, after taking note of the material produced by the assessees to substantiate its contentions regarding exclusion of a substantial part of the turnover for the purposes of assessment to tax. To enable the Assessing Authority to pass fresh orders as directed, I direct the petitioners in the said writ petitions to appear before the Assessing Authority, at his Office, at 11.00 a.m. on 28.10.2019. The Assessing Authority shall pass fresh orders, as directed, within one month thereafter. I make it clear that, in the de novo proceedings to be conducted by the Assessing Authority, it will be open to the petitioners to raise all contentions on merits, before the said authority, and the orders passed by the Assessing Authority shall reflect a consideration of all such points urged on behalf of the assessees. 10. As regards penalty orders that are impugned in W.P. (C).No.7122/2019, W.P.(C).No.9073/2019 and W.P. (C).No.19762/2019, as already noticed, the said orders have been passed against the petitioners on almost identical grounds as informed the assessment orders that have been set aside in this judgment. 10. As regards penalty orders that are impugned in W.P. (C).No.7122/2019, W.P.(C).No.9073/2019 and W.P. (C).No.19762/2019, as already noticed, the said orders have been passed against the petitioners on almost identical grounds as informed the assessment orders that have been set aside in this judgment. Apart from the reasons given in this judgment for setting aside the assessment orders, I also find force in the submission of the learned senior counsel relying on the decisions of this Court in U.K. Monu Timbers case and Flipkart [supra] that it was improper on the part of the Intelligence Officer to pass orders of penalty in matters such as these, where, it was only pursuant to an assessment proceedings that the issue of possible evasion of tax by an assessee could be determined. As noticed in the aforesaid judgments, it is not in the domain of an Intelligence Officer adjudicating a penalty proceedings to embark upon a roving enqiry and thereafter estimate the tax payable by the assessee for the purposes of quantifying a penalty on the said assessee. If such a course of action is permitted, then it would lead to an undesirable situation where, the authority entrusted with imposition of penalty usurps the powers accorded under the fiscal statute to the Assessing Authority, and a possibility of divergent views being taken in relation to an assessee by two Officers of the same Department. In my view, in cases where there is an uncertainty with regard to the real nature of the transaction, as also where there are factors that may have a bearing on the estimation of turnover, which are to be considered by the Assessing Authority, the Intelligence Officers ought ideally to refer the matter to the Assessing Authorities concerned to arrive at a finding with regard to liability to tax, as well as estimation of turnover, before invoking the penal provisions of the KVAT Act. The Intelligence Officers ought not to be overzealous in their efforts to impose penalty on assessees even before the Assessing Authority has had an opportunity to determine the tax that is payable by the assessees. I therefore quash the impugned orders in W.P. (C).No.7122/2019, W.P.(C).No.9073/2019 and W.P. (C).No.19762/2019, and direct the Intelligence Officer concerned to await the orders to be passed by the Assessing Authority, for the assessment years in question, and thereafter initiate penal proceedings against the petitioners, if found necessary. I therefore quash the impugned orders in W.P. (C).No.7122/2019, W.P.(C).No.9073/2019 and W.P. (C).No.19762/2019, and direct the Intelligence Officer concerned to await the orders to be passed by the Assessing Authority, for the assessment years in question, and thereafter initiate penal proceedings against the petitioners, if found necessary. In the result, W.P.(C).No.7122/2019, W.P.(C).No.9073/2019, W.P.(C).No.11489/2019, W.P.(C).No.11524/2019 and W.P. (C).No.19762/2019 are allowed, by setting aside the impugned orders. In those cases where the assessment orders are set aside, the Assessing Authority concerned shall redo the assessments, afresh, based on the directions issued in this judgment. In those cases where the penalty orders have been set aside, the Intelligence Officers shall take a decision as to whether or not penal proceedings should be initiated against the petitioners after going through the assessment orders that are passed in relation to the petitioners for the assessment years 2012-13 and 2013-14, pursuant to the directions in this judgment.