Quashed

Sini Biju v. State of Kerala

Kerala HC23 Feb 2016WP(C)/5455/2016

Case brief

AI extract

What is this about?

This writ petition challenged an assessment order under the Kerala Value Added Tax Act for AY 2010-11. The court found the order violated principles of natural justice as the respondent failed to afford an opportunity of hearing or issue an intimation regarding best judgment assessment before the final order. The court quashed the order.

What did the court decide?

Ext.P7 order quashed; 2nd respondent directed to pass fresh assessment order within one month; petitioner to appear on 08.03.2016 with books of account; final order by 30.03.2016.

Sini Biju Vs State of Kerala — GST and Indirect Tax | Kerala HC (2016)

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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 A.K.JAYASANKARAN NAMBIAR

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TUESDAY, THE 23RD DAY OF FEBRUARY 2016/4TH PHALGUNA, 1937

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WP(C).No. 5455 of 2016 (F)

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PETITIONER(S):

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

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MRS. SINI BIJU, ABBATEL, TC 11-551, NEAR MATHRUBHUMI, VELIYANNUR, THRISSUR.

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BY ADVS.SRI.C.HARIKUMAR DR.K.P.PRADEEP

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RESPONDENT(S):

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

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1. STATE OF KERALA,

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REPRESENTED BY ITS PRINCIPAL SECRETARY TO TAXES,

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GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2. COMMERCIAL TAX OFFICER,

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DEPARTMENT OF COMMERCIAL TAXES, 4TH CIRCLE,

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THRISSUR-680 021.

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3. INSPECTING ASSISTANT COMMISSIONER,

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DEPARTMENT OF COMMERCIAL TAXES,

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COMMERCIAL TAX COMPLEX, POOTHOLE, THRISSUR-680 021.

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4. M/S.HAVELLS INDIA LTD.,

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42/1817B, K.G.SQUARE, MARKET ROAD,

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COMPARA JUNCTION, TATAPURAM P.O., ERNAKULAM-682 018,

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REPRESENTED BY ITS MANAGER.

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R1-R3 BY GOVERNMENT PLEADER SRI.R.RANJITH

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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msv/

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WP(C).No. 5455 of 2016 (F)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1 : TRUE COPY OF THE ASSESSMENT ORDER NO.32081428809/2010-11 DT.6-12-2012 ISSUED BY 2ND RESPONDENT TO THE PETITIONER.

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P2 : TRUE COPY OF THE ORDER IN APPEAL NO.KVATA 35/13 DT.20-1-15 ISSUED BY THE ASSISTANT COMMISSIONER (APPEALS), COMMERCIAL TAXES, THRISSUR.

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P3 : TRUE COPY OF THE DECLARATION DT.18-1-12 ISSUED BY 4TH RESPONDENT.

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P3A : TRUE COPY OF THE DECLARATION DT.2-5-12 ISSUED BY 4TH RESPONDENT.

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P4 : TRUE COPY OF THE LETTER SUBMITTED BY THE PETITIONER ON 28-4-15 TO 2ND RESPONDENT.

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P5 : TRUE COPY OF THE NOTICE NO.32081428809 DT.3-11-15 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.

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P6 : TRUE COPY OF THE LETTER DT.11-11-15 SUBMITTED BY THE PETITIONER.

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P7 : TRUE COPY OF THE ORDER NO.32081428809/2010-11 DT.11-12-15 ISSUED BY 2ND RESPONDENT.

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P8 : TRUE COPY OF THE RR NOTICE NO.A7-586/16 DT.5-2-2016 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.

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RESPONDENT(S)' EXHIBITS:

NIL

//TRUE COPY//

P.S.TO JUDGE

Ms v/

A.K.JAYASANKARAN NAMBIAR, J.

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W.P.(C). No. 5455 of 2016

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===================================================== Dated this the 23^rd day of February, 2016

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JUDGMENT

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The challenge in the writ petition is against Ext.P7 order of assessment passed in relation to the petitioner for the assessment year 2010-11 under the Kerala Value Added Tax Act, hereinafter referred to as the KVAT Act. The grievance of the petitioner is essentially that before passing Ext.P7 order, he was not afforded an opportunity of hearing. It is therefore contended that Ext.P7 order is vitiated by a non compliance with the rules of natural justice.

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I have heard the learned counsel appearing for the petitioner as also the learned Government Pleader appearing for the respondents.

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On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find from Ext.P7 order that the said order was passed without hearing the petitioner. In Ext.P7 order, there is reference to a notice that is served on the petitioner on 03.11.2015, calling for the books of accounts and other records. It is stated that, although the notice was served on the dealer on 06.11.2015, he did not respond to the notice and it is under those circumstances that the assessment was completed without hearing the petitioner. In my view, even after a

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W.P.(C). No. 5455 of 2016

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-2-

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notice calls upon the assessee to produce certain records, if the assessee does not respond to the same, there ought to have been a notice informing the assessee of the proposal to complete the assessment on best judgment basis and the assessee ought to have been given at least seven days time to appear for the hearing in connection with the proposed assessment. Inasmuch as in the instant case, the said procedure has not been followed, I am of the view that Ext.P7 cannot be legally sustained. Accordingly, I quash Ext.P7 order and direct the 2^nd respondent to pass fresh orders of assessment in relation to the petitioner for the assessment year 2010-11, within a period of one month from the date of receipt of a copy of this judgment. In order to enable the 2^nd respondent to do so, I direct the petitioner to appear before the 2^nd respondent at his office at 11 AM on 08.03.2016 together with the books of accounts and other documents to substantiate his case on merits. The 2^nd respondent assessing authority shall pass final orders of assessment as directed, on or before 30.03.2016.

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The writ petition is disposed as above.

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Sd/-

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A.K.JAYASANKARAN NAMBIAR JUDGE

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das /23.02.2016

Sini Biju v. State of Kerala

Case brief

What is this about?

What did the court decide?

Sini Biju v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

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