Allowed

V.K.Kassim v. Intelligence Officer (Ib)

Kerala HC7 Mar 2019WA/748/2019

Case brief

AI extract

What is this about?

This writ appeal concerned a penalty under Section 67 of the Kerala VAT Act deemed served on an unclaimed address. The Single Judge dismissed the petition. The High Court, invoking equity and discretionary jurisdiction under Article 226, allowed the appeal, set aside the lower order, quashed the proceedings, and directed the authority to treat the notice as valid and allow the appellant to file ob

What did the court decide?

Writ petition allowed to quash proceedings; appellant directed to submit objections within one week and appear for personal hearing on 19-03-2019; authority directed to pass fresh orders within two we

V.K.Kassim Vs Intelligence Officer (Ib) — Writ and Judicial Review | Kerala HC (2019)

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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 C.K.ABDUL REHIM

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THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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THURSDAY ,THE 07TH DAY OF MARCH 2019 / 16TH PHALGUNA, 1940

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WA.No. 748 of 2019

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AGAINST THE JUDGMENT IN WP(C) 4718/2019 of HIGH COURT

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APPELLANT/PETITIONER:

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V.K.KASSIM AGED 60 YEARS, S/O. MAMMU, KOKKODANKANDI, CHOKLI, KANNUR.

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BY ADVS.

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SRI.HARISANKAR V. MENON SMT.K.KRISHNA SMT.MEERA V.MENON

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RESPONDENTS/RESPONDENTS:

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1 INTELLIGENCE OFFICER (IB) DEPARTMENT OF COMMERCIAL TAXES, KOTTAYAM - 686 082

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2 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM - 695 001

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OTHER PRESENT:

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SR.GP.SRI. MOHAMMED RAFIQ

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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W.A. No.748/2019

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C.K. ABDUL REHIM, J. & R. NARAYANA PISHARADI, J.

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W.A. No. 748 OF 2019

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DATED THIS THE 7^th DAY OF MARCH, 2019

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J U D G M E N T

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Abdul Rehim, J:

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An order imposing penalty under Section 67 of the Kerala Value Added Tax Act, 2003 (hereinafter referred to as 'KVAT Act'

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for short) was challenged by the appellant in W.P. (C) No.4718/2019 mainly contending that he was denied of any opportunity to object the proposal for imposition of penalty, because he had not received the notice of proposal.

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The learned Single Judge while dismissing the writ petition, found that there was proper compliance of the requirement under Section 88 (c) of the KVAT Act with respect to the service of the notice proposing penalty. It was specifically found that the authority had served the notice to the appellant through registered post in his house address, because enquiry made by him revealed that the place of business of the assessee was not functioning at the relevant time. But the notice issued in the home address was returned as “unclaimed”. The learned Judge observed that there is deemed service on the petitioner.

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W.A. No.748/2019 -3-

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Hence the writ petition was dismissed leaving liberty to the petitioner to seek the alternate remedy of appeal. The appellant is filing this writ appeal, aggrieved by the said judgment.

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Heard; counsel for the appellant as well as learned Government Pleader appearing for the respondents.

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Technically there is compliance of the requirement under Section 88 (c) of the KVAT Act. It is to be presumed that there is deemed service of the notice. Hence there occurred no legal infirmity in the order imposing penalty. But learned counsel for the appellant pleaded for indulgence of this court pointing out that the appellant is in a pitiable situation financially, after closing down the business. It is contended that the huge amount of penalty is imposed only on the basis of presumptions and assumptions, which remains uncontroverted. According to him, if he gets a chance to object the proposal he can convince the authority about the factual aspects and reality. It is pointed out that, despite the presumption that there is deemed service, fact remains that the appellant had not received the proposal notice and he had no opportunity to object the same.

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Relief under Article 226 being discretionary in nature, principles of equity is one of the considerations which the court

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W.A. No.748/2019 -4-

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can take note of. It is true that there exist an effective remedy of appeal against an order imposing penalty. But at the same time it remains a fact that appellant did not get an opportunity to object the proposal, for because of any willful latches or fault on his part. Under such circumstances, we are of the considered opinion that there is no harm in exercising the jurisdiction to extent an equitable relief by providing one more opportunity to the appellant to facilitate him to file objections against the proposal and directing the 1^st respondent to pass fresh orders. However, we make it clear that such a relief is granted not on the basis of the any legal rights, but purely on equity, which cannot be treated as a precedent in any other occasion.

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Hence, the above writ appeal is hereby allowed. Judgment of the Single Judge in W.P. (C) No.4718/2019, dated 25-02-2019 is hereby set aside. The writ petition is allowed to the extent of quashing Ext.P1 proceedings of the 1^st respondent. The appellant is directed to submit objections if any against the proposal for imposition of penalty, by treating Ext.P1 as a notice of proposal, within one week from today. He shall appear before the 1^st respondent for a personal hearing in the matter on 19-03-2019. The 1^st respondent is directed to pass fresh orders

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W.A. No.748/2019

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after hearing the appellant on the said date itself or on any other date to which the matter is adjourned at the earliest, at any rate, within a period of 2 weeks from 19-03-2019.

Sd/-

C.K.ABDUL REHIM

JUDGE

Sd/-

R. NARAYANA PISHARADI

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JUDGE

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AMG

V.K.Kassim v. Intelligence Officer (Ib)

Case brief

What is this about?

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V.K.Kassim v. Intelligence Officer (Ib)

Case brief

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