Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 24TH DAY OF JULY 2020 / 2ND SRAVANA, 1942 WP(C).No.14629 OF 2020(C) PETITIONERS:
1 SUNIL MATHEW ABRAHAM, AGED 54 YEARS, MANALEL HOUSE, OPPOSITE BOAT JETTY, THATHAMPALLY P.O., ALAPPUZHA-688 013. 2 LEELAMMA ABRAHAM, MANALIL HOUSE, OPPOSITE BOAT JETTY, THATHAMPALLY P.O., ALAPPUZHA-688 013. 3 SETHU PHILIPOSE, MANKOTT, AVT COMPOUND, NEAR CULLEN BRIDGE, ALAPPUZHA-688 012. BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM SRI.RAJA KANNAN SMT.S.PARVATHI
RESPONDENTS: 1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2 THE STATE TAX OFFICER-I, STATE GOODS AND SERVICES TAX DEPARTMENT, FIRST CIRCLE, ALAPPUZHA-688 001. SRI K.P HARISH SR GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.14629 OF 2020 2
JUDGMENT
The petitioners contend that they were partners of a firm, M & P Agencies, Alappuzha registered under the Kerala Value Added Tax Act, 2003 ( ‘Act’ for short ) and according to them, the business was closed down in the year 2011 and the dealer registration was cancelled. In the year 2018, notice under Section 25 (1) was issued to them by the 2 nd respondent, proposing to make an assessment for escaped turnover. Though it was challenged before this Court on the ground that the demand was barred by limitation, the same was repelled by this Court. Later, in response to the notice, Exhibit P3 reply was submitted by the petitioners raising their objections. They appeared before the 2nd respondent on 17.9.2019 as directed in the notice and requested the assessing officer to furnish details of cancellation of registration and alleged details of transactions carried out by the firm pursuant to cancellation of registration by Exhibit P4 letter. The petitioners contend that the details sought for by them were not provided, but instead, they were directed to appear on 7.11.2019. Due to inconvenience of the counsel, they sought for adjournment to the next day. The matter was accordingly posted on 8.11.2019 and since the documents sought for as requested by Exhibit P4 were not provided, the petitioners submitted Exhibit P6 request furnishing their email address and requested for a personal hearing thereafter. The fact
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that Exhibit P6 was received by the 2nd respondent is evident from his endorsement at the bottom. The details were then sent to the email address by the 2nd respondent on 12.11.2019 as is evident from Exhibit P6 (a). The petitioner contends that while they were waiting for an opportunity of personal hearing, they were served with Exhibit P7 order dated 10.3.2020 by which the assessment was completed and they were ordered to pay a sum of Rs.7,96,568.00/- towards dues. The said order is under challenge in this Writ Petition .
2. Sri. Raja Kannan, the learned counsel appearing for the
petitioner submitted that Exhibit P7 order was passed in clear violation of section 25 (1) of the Act as the provisions mandate that before making an assessment, the dealer shall be afforded a reasonable opportunity of being heard. It is submitted that the perusal of the records would reveal that the case was adjourned from 7.11.2019 to 8.11.2019 based on request by the petitioner and it was on 12.11.2019, that the records sought for was provided by email. This fact is evident from the endorsement made by the 2 nd respondent in Exhibit P6. It is contended that the order was passed in a casual manner without considering the lawful objections raised by the petitioners and without even affording a reasonable opportunity of being heard. It is finally submitted that the party shall not be left to suffer because of loss of opportunity at the original stage of adjudication.
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3. Sri.K.P. Harish, the learned senior Government Pleader has
opposed the prayer. He contended that ample opportunities were given to the petitioners and challenge raised by the petitioners against the assessment for the year 2013-2014 are meritless.
4. I have considered the submissions advanced. The records made
available reveal in unmistakable terms that the petitioners had appeared before the assessing officer and had reiterated their demands for certain documents which were sought for earlier as per Exhibit P4, and they had also requested for an opportunity of personal hearing. The endorsement in Exhibit P6 reveals that the same was received by the 2 nd respondent on 8.11.2019. However, in Exhibit P7 order it is stated that there was no representation when the case was taken up on 7.11.2019 and as no objection was filed, the 2nd respondent had no alternative to complete the assessment. This observation is clearly not correct in view of the overwhelming records produced before this Court which have not been controverted. I am persuaded to hold that the assessment was completed without affording the petitioners a reasonable opportunity of being heard and that the statutory safeguards have been violated.
This Writ Petition will stand allowed. Exhibit P7 will stand set aside. The 2nd respondent is directed to issue fresh notice to the petitioner as WP(C).No.14629 OF 2020 5 contemplated under law and, after considering Exts.P2 and P3 objections submitted by the petitioners, shall complete the assessment after affording them an opportunity of being heard, preferably within a period of three weeks.
Sd/- RAJA VIJAYARAGHAVAN V JUDGE IAP WP(C).No.14629 OF 2020 6 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 A TRUE COPY OF THE NOTICE DATED 4.8.2018 ISSUED BY THE 2ND RESPONDENT UNDER SECTION 25(1) OF THE ACT, FOR THE YEAR FROM 2013-14. EXHIBIT P2 A TRUE COPY OF THE REPLY DATED 18.3.2019 SUBMITTED BY THE 1ST PETITIONE FOR THE YEAR 2013-14 BEFORE THE 2ND RESPONDENT. EXHIBIT P3 A TRUE COPY OF THE REPLY DATED 9.9.2019 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P4 A TRUE COPY OF THE LETTER DATED 17.9.2019 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P5 A TRUE COPY OF THE ADJOURNMENT REQUEST DATED 7.11.2019 FILED BY THE 1STM PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P6 A TRUE COPY OF THE LETTER DATED 8.11.2019 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P6(A) THE TRUE COPY OF THE E-MAIL(WITHOUT ANNEXURES) DATED 12.11.2019 SEND FROM THE OFFICE OF THE 2ND RESPONDENT TO THE 1ST PETITIONER. EXHIBIT P7 A TRUE COPY OF THE ORDER OF ASSESSMENT DATED 10.3.2020 ISSUED BY THE 2ND RESPONDENT FOR THE YEAR 2013-14 UNDER THE KVAT ACT. EXHIBIT P8 A TRUE COPY OF THE RECTIFICATION PETIITON DATED 26.6.2020 *(WITHOUT ANNEXURES) FILED BY THE 1ST PETIITONER BEFORE THE 2ND RESPONDNET. WP(C).No.14629 OF 2020 7 EXHIBIT P9 THE TRUE COPY OF THE TRACKING REPORT
DATED NIL AVAILABLE FROM THE OFFICIAL WEBSITE OF THE DEPARTMENT OF POSTS ACKNOWLEDGING THE RECEIPTR OF EXT-P8 LETTER AT THE OFFICE OF THE 2ND RESPONDENT. RESPONDENTS' EXHIBITS:NIL