Quashed

Abdul Salam.P.K. v. State of Kerala

Kerala HC6 Feb 2012WP(C)/1089/2012

Case brief

AI extract

What is this about?

The High Court of Kerala held that penalty orders under the KVAT Act were vitiated by non-application of mind and denial of natural justice. The court quashed the appeals imposed without addressing adjournment requests and directed fresh proceedings with a hearing. This decision ensures fair play before punitive measures are finalized.

What did the court decide?

Quashed multiple penalty orders and audited; allowed petitioner to file objection notices within stipulated time; directed fresh hearing and fresh orders.

Abdul Salam.P.K. Vs State of Kerala — Constitutional and Fundamental Rights | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE ANTONY DOMINIC

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MONDAY, THE 6TH DAY OF FEBRUARY 2012/17TH MAGHA 1933

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WPC.No. 1089 of 2012 (I)

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PETITIONER:

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ABDUL SALAM.P.K. JANATHA STEELS, OTTAPPALAM ROAD, CHERPLASSERRY PALAKKAD DISTRICT, PIN-679 503.

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BY ADV. SRI.R.SUDHAKARA MENON

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RESPONDENT(S):

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1. STATE OF KERALA REP. BY SECRETARY, FINANCE DEPARTMENT GOVT. SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2. COMMERCIAL TAX OFFICER COMMERCIAL TAXES, COMMERCIAL TAX OFFICE, OTTAPPALAM PALAKKAD, PIN-679 101.

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3. INSPECTING ASSISTANT COMMISSIONER COMMERCIAL TAX, COMMERCIAL TAX COMPLEX PALAKKAD-678 001.

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4. TAHSILDAR REVENUE RECOVERY, COLLECTORATE, PALAKKAD PIN-678 001.

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BY SENIOR GOVERNMENT PLEADER SMT.SOBHA ANNAMMA EAPPEN.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WPC.No. 1089 of 2012 (I)

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APPENDIX

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PETITIONER'S EXHIBITS

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EXT.P1. COPY OF THE ANNUAL RETURN FOR 2007-08 DATED 20.02.2009

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EXT.P2. COPY OF THE CHELAN NO.180 DATED 20.02.2009 COUNTERSIGNED BY THE 2ND RESPONDENT.

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EXT.P3. COPY OF THE NOTICE DATED 18.8.2011 OF THE 2ND RESPONDENT FOR THE RETURN PERIOD 04/07 TO 03/08.

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EXT.P4. COPY OF THE NOTICE DATED 18.8.2011 OF THE 2ND RESPONDENT FOR ANNUAL RETURN FOR 2007-2008.

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EXT.P5. COPY OF THE NOTICE UNDER SECTION 67 DATED 18.8.2011 OF THE 2ND RESPONDENT

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EXT.P6. COPY OF THE ORDER DATED 12.9.2011 OF THE 2ND RESPONDENT 04.07. TO 03.08.

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EXT.P7. COPY OF THE ORDER DATED 12.9.2011 OF THE 2ND RESPONDENT ANNUAL RETURN FOR 2007-2008.

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EXT.P8. COPY OF THE ORDER DATED 12.9.2011 OF THE 2ND RESPONDENT FOR THE YEARS 07-08.

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EXT.P9. COPY OF THE NOTICE DATED 18.8.2011 OF THE 2ND RESPONDENT FOR THE RETURN PERIOD 04/08 TO 03/09.

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EXT.P10.COPY OF THE NOTICE DATED 18.8.2011 OF THE 2ND RESPONDENT FOR THE ANNUAL RETURN PERIOD 2008-2009.

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EXT.P11. COPY OF THE NOTICE UNDER SECTION 67 DATED 18.8.2011 ISSUED BY THE 2ND RESPONDENT

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EXT.P12. COPY OF THE ORDER DATED 13.9.2011 OF THE 2ND RESPONDENT FOR THE YEARS 08-09

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EXT.P13. COPY OF THE ORDER DATED 13.9.2011 OF THE 2ND RESPONDENT FOR THE YEARS 08-09.

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EXT.P14. COPY OF THE ORDER DATED 13.9.2011 OF THE 2ND RESPONDENT FOR THE YEAR 08-09.

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EXT.P15.COPY OF THE NOTICE DATED 17.8.2011 ISSUED BY THE 2ND RESPONDENT FOR THE RETURN PERIOD 04/09-03/10

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EXT.P16.COPY OF THE NOTICE DATED 17.8.2011 ISSUED BY THE 2ND RESPONDENT FOR THE ANNUAL RETURN PERIOD 2009-2010

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WPC.No. 1089 of 2012 (I)

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EXT.P17.COPY OF THE NOTICE DATED 20.8.2011 UNDER SECTI0N 67 OF THE ACT BY THE 2ND RESPONDENT

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EXT.P18. COPY OF THE ORDER DATED 14.9.2011 IMPOSING PENALTY OF RS.1,20,000/- BY THE 2ND RESPONDENT.

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EXT.P19. COPY OF THE ORDER DATED 14.9.2011 IMPOSING PENALTY OF RS.10,000/- BY THE 2ND RESPONDENT.

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EXT.P20. COPY OF THE ORDER DATED 14.9.2011 IMPOSING PENALTY OF RS.10,000/- BY THE 2ND RESPONDENT.

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EXT.P21. COPY OF THE NOTICE DATED 22.11.2010 OF THE 2ND RESPONDENT

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EXT.P22. COPY OF THE NOTICE DATED 18.12.2010 OF THE 2ND RESPONDENT EXT.P23. COPY OF THE NOTICE DATED 6.1.2011OF THE 2ND RESPONDENT EXT.P24. COPY OF THE ORDER DATED 4.2.2011 OF THE 2ND RESPONDENT EXT.P25. COPY OF THE NOTICE DATED 5.8.2011 OF THE 2ND RESPONDENT EXT.P26. COPY OF THE ORDER DATED 17.9.2011 OF THE 2ND RESPONDENT EXT.P27. COPY OF THE NOTICE DATED 17.8.2011 OF THE 2ND RESPONDENT EXT.P28. COPY OF THE NOTICE DATED 15.9.2011 OF THE 2ND RESPONDENT EXT.P29. COPY OF THE ORDER DATED 17.9.2011 OF THE 2ND RESPONDENT EXT.P30. COPY OF THE ORDER DATED 27.9.2011 OF THE 2ND RESPONDENT EXT.P31. COPY OF THE NOTICE DATED 20.8.2011 OF THE 2ND RESPONDENT UNDER SECTION 67

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EXT.P32. COPY OF THE ORDER DATED 12.9.2011 OF THE 2ND RESPONDENT

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EXT.P33. COPY OF THE MEDICAL CERTIFICATE DATED 10.9.2011.

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EXT.P34. COPY OF THE MEDICAL CERTIFICATE DATED 15.12.2011.

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EXT.P35. COPY OF THE REQUEST DATED 5.9.2011 FILED BY THE PETITIONER ON 5.9.2011 BEFRE THE 2ND RESPONDENT.

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EXT.P36. COPY OF THE ORDER DATED 5.9.2011 OF THE 2ND RESPONDENT.

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EXT.P37. COPY OF THE REQUEST DATED 25.11.10 FILED BEFORE THE 2ND RESPONDENT.

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EXT.P38. COPY OF THE REQUEST DATED 15.1.2011 FILED BEFORE THE 2ND RESPONDENT.

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WPC.No. 1089 of 2012 (I)

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EXT.P39. COPY F THE REQUES DATED 26.9.2011 FILED BEFRE THE 2ND RESPONDENT.

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EXT.P40. COPY OF THE JUDGMENT IN WPC NO.34171/2011 DATED 20.12.2011

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RESPONDENT'S EXHIBITS : NIL

/ TRUE COPY /

P.A. TO JUDGE

ANTONY DOMINIC, J.

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W.P.(C) NO.1089 OF 2012(I)

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--------------------------------------------------

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Dated this the 6^th day of February, 2012

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J U D G M E N T

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Penalty orders issued against the petitioner evidenced by Exts.P6,P7,P8,P12,P13,P14,P18 to P20,P22,P24,P26,P29,P30 , P32 and also P36 rejecting his request for adjournment are under challenge in this writ petition.

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Petitioner is a dealer registered under the KVAT Act

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dealing in cement, Iron and steel. He was issued Exts.P3 to P5, P9 to P10, P15 to P17,P21,P23,P25,P27,P28 and P31 notices proposing to impose penalty on him for non-filing of returns and paying dues. Except Exts.P21, P23 and P28, the other notices communicated to him were posted for hearing on 5.9.2011 and on receipt of these notices, Ext.P35 request was made by the petitioner on 5.9.2011 for an adjournment by one month. However, that request was rejected by Ext.P36 dated 5.9.2011

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and the impugned orders except P22,P24 and 30 were passed. In so far as the penalty notices which are marked as Ext.P21,

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WPC.No. 1089/2012

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P25 and P28 are concerned, similar requests evidenced by Ext.P37, P38 and P39 were made by the petitioner. However, without passing any orders on these requests that Exts.P22 , P24 and P30 orders were passed by the second respondent imposing penalty on the petitioner. Aforesaid orders of penalty and Ext.P36 rejecting the request of the petitioner for adjourning the hearing are under challenge in this writ petition.

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In these cases the time granted to the petitioner for filing his objection was 7 days. On the due date itself the request was made by the petitioner for an adjournment. When on the first occasion a request for adjournment was made and that too in a case where time granted was only 7 days, unless the officer is satisfied that the request made was a mala fide one, fairness required that a reasonable opportunity should have been given. In this case there is nothing to indicate that the request for adjournment was a mala fide one and therefore I am satisfied that the respondents acted unfairly in having rejected the request of the petitioner. That apart in Ext.P35 the request, the

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WPC.No. 1089/2012

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:3 :

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petitioner sought postponement of the penalty proceedings. However, in Ext.P36 order rejecting Ext.P35, nothing has been mentioned about the penalty proceedings and on the other hand what is mentioned is the pre-assessment notices. Therefore there has not been any consideration of the request for adjournment of the penalty proceedings even. Similar is the case with regard to Exts.P37,38,39 requests for adjournment and the definite case of the petitioner is that without passing any orders thereon, penalty has been imposed as per Exts.P22,P24 and P30.

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For the aforesaid reasons, I am satisfied that these orders were passed denying a reasonable opportunity to the petitioner to file his objection and for that reason I am inclined to think that these orders are vitiated. Therefore,I quash Exts.P6, P7,P8,P12,P13,P14,P18 to P20,P22,P24,P26,P29,P30,P32 and P36. It is directed that it will be open to the petitioner to file his objection to the notices in question which shall be done a any rate before 23.2.2012 and if objections are filed within the said

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WPC.No. 1089/2012

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period, the petitioner will be afforded an opportunity of hearing on 28.2.2012 and fresh orders will be passed at any rate before 31.3.2012.

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Petitioner shall produce a copy of the judgment and writ petition before the 2^nd respondent for compliance.

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Writ petition is disposed of as above.

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(ANTONY DOMINIC) JUDGE

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vi/

Abdul Salam.P.K. v. State of Kerala

Case brief

What is this about?

What did the court decide?

Abdul Salam.P.K. v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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