Remanded

M/S.Shobha Projects and Trades (P) Ltd. v. State of Kerala

Kerala HC13 Jun 2019WP(C)/9862/2019

Case brief

AI extract

What is this about?

The Court set aside assessment and penalty orders for AYs 2012-13 and 2013-14 for failing to provide a proper opportunity of hearing due to notice delivery failures, remitting the matter to the Assessing Officer for disposal within 30 days after the petitioner submits an explanation on June 27, 2019.

What did the court decide?

Exhibits P6, P9, and P12 (assessment and penalty orders) set aside; matter remanded to second respondent for fresh consideration and disposal.

M/S.Shobha Projects and Trades (P) Ltd. Vs State of… — Writ and Judicial Review | Kerala HC (2019)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE S.V.BHATTI

¶4

THURSDAY, THE 13TH DAY OF JUNE 2019 / 23RD JYAISHTA, 1941

¶5

WP(C).No. 9862 of 2019

¶6

PETITIONER/S:

¶7

M/S.SOBHA PROJECTS AND TRADES (P) LTD NO.23/2,SONNENALALLI,BROOKFILED, MAHADEVAPURA POST, BANAGALORE-560048,REPRESENTED BY ITS AUTHORISED SIGNATORY

¶8

BY ADVS. SRI.G.KRISHNAKUMAR SMT.M.L.REMYA

¶9

RESPONDENT/S:

¶10

1 STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF TAXES,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695 001

¶11

2 ASSISTANT COMMISSIONER (WORKS CONTRACT AND LT),OFFICE OF THE DEPUTY COMMISSIONER OF COMMERCIAL TAXES,MATTANCHERRY,COCHIN-682 002

¶12

OTHER PRESENT:

¶13

GP. SMT. M.M. JASMIN

¶14

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶15

W.P.(C) No. 9862/2019

¶16

-2-

¶17

J U D G M E N T

¶18

Heard Mr.G.Krishna Kumar for the writ petitioner and

¶19

Smt.M.M. Jasmin, the learned Government Pleader for the respondents.

¶20

The petitioner challenges Exts.P6, P9 and P12 orders passed by the second respondent under Section 67 of the KVAT Act for the assessment years 2012-13 and 2013-14 as violative of principles of natural justice and that the petitioner is not heard or an opportunity is provided before passing orders in Exts.P6, P9 and P12. The portion relied on by the petitioner reads that notice sent at the Director's address was returned by the postal authorities with the remarks 'refused'. The notices already issued by the office was also returned by the postal authorities with remarks 'refused'. The notice sent at the business place address was returned by the postal authority as 'not known'. A hearing notice dated 14.07.2017 was again issued at Director's

¶21

W.P.(C) No. 9862/2019

¶22

-3-

¶23

address, but was returned by the postal authorities with

¶24

remarks 'refused'. As per Section 88 of the KVAT Act 2003, any notice required to be served on or given to any person under this Act shall be deemed to be duly served or given if it is sent by registered post at the last known place of residence or business. With the above reasoning the assessment order is concluded and the petitioner is called upon to pay penalty as stated in Exts.P6, P9 and P12.

¶25

The respondent filed counter affidavit and has given the details of various steps taken before passing the orders impugned in the writ petition. In the case on hand, impugned orders of assessment are for the years 2012-13 and 2013-14 were completed to the best of judgment under Section 25(1) of the Act and the penalty was determined to the best judgment of the Assessing Officer. The petitioner in the affidavit has stated the severance of relationship between petitioner Company and the

¶26

W.P.(C) No. 9862/2019

¶27

-4-

¶28

Director to whom notice was sent and that the petitioner is not doing business at the address stipulated in the notices sent to the petitioner. The petitioner, as is admitted by the respondents as well, has deposited 40% of the tax demanded. It is contended that in a case like the present the assessment order as well as the penalty order could be held as made behind the back of petitioner as best judgment and that at both the occasions the petitioner is denied opportunity of hearing.

¶29

This Court keeping in view the substantive reply which could be placed before the Assessing Officer is of the view that instead of relegating the petitioner to work out the remedy of appeal against all the orders impugned in the writ petition, but with a view to ensuring adherence to the principle viz not only justice is done but seen to have been done and fair procedure is followed before tax liability is determined under the Act, sets aside Exts P6, P9 and P12 and remits the matter to

¶30

W.P.(C) No. 9862/2019

¶31

-5-

¶32

the second respondent for consideration and disposal in accordance with law. To avoid further delay in the matter, this Court directs the petitioner to appear before the Assessing Officer on 27.06.2019 with his explanation together with evidence and the Assessing Officer is given liberty either to complete the assessment on 27.06.2019 or on the next date so appointed for this purpose. However, the assessment is completed on or before 30.07.2019. The amount already paid is subject to further orders in this behalf. Copy in three days.

¶33

Sd/S.V.BHATTI JUDGE

¶34

jjj

¶35

W.P.(C) No. 9862/2019

¶36

-6-

¶37

APPENDIX

¶38

PETITIONER'S/S EXHIBITS:

¶39

EXHIBIT P1	TRUE COPY OF THE ANNUAL RETURNS FOR THE YEAR 2012-2013
EXHIBIT P2	TRUE COPY OF THE ANNUAL RETURNS FOR THE YEAR 2013-14
EXHIBIT P3	TRUE COPY OF THE FORM NO.32 DATED 5.6.2012 FILED BY THE PETITIONERS TO THE REGISTRAR OF COMPANIES INFORMING RESIGNATION OF RAMESH BALIGA
EXHIBIT P4	TRUE COPY OF THE COPY APPLICATION DATED 15.2.2018 SUBMITTED BY THE PETITIONER
EXHIBIT P5	TRUE COPY OF THE NOTICE DATED 20.10.2017 ISSUED UNDER SEC.67(1) OF THE KVAT ACT BY THE 2ND RESPONDENT
EXHIBIT P6	TRUE COPY OF THE ORDER DATED 31.10.2017 OF THE 2ND RESPONDENT, PASSED PURSUANT TO EXHIBIT P5 NOTICE
EXHIBIT P7	TRUE COPY OF THE DEMAND NOTICE DATED 31.10.2017 ISSUED BASED ON EXHIBIT P6
EXHIBIT P8	TRUE COPY OF REVISED NOTICE U/S.25(1) R/W SEC.25 (A) DATED 7.8.2017 FOR THE YEAR 2012-13 ISSUED BY THE 2ND RESPONDENT
EXHIBIT P9	TRUE COPY OF THE ORDER DARTED 31.8.2017 OF THE 2ND RESPONDENT U/S.24(1) AND 25 (A) OF KVAT FOR THE YEAR 2012-13
EXHIBIT P10	TRUE COPY OF THE DEMAND NOTICE DATED 31.8.2017 ISSUED PURSUANT TO EXHIBIT P9
EXHIBIT P11	TRUE COPY OF THE NOTICE DATED 15.7.2017 ISSUED UNDER SECTION 25(1) OF KVAT ACT FOR THE YEAR 2013-14

¶40

W.P.(C) No. 9862/2019

¶41

-7-

¶42

EXHIBIT P12 TRUE COPY OF THE ORDER DATED 15.7.2017 ISSUED BY THE 2ND RESPONDENT UNDER SECTION 25(1) OF KVAT ACT FOR THE YEAR 2013-14

¶43

EXHIBIT P13 TRUE COPY OF THE DEMAND NOTICE DATED 31.8.2017 ISSUED BY THE 2ND RESPONDENT

¶44

EXHIBIT P14 TRUE COPY OF THE DEMAND DRAFTS DATED 11.4.2018 DRAWN ON FEDERAL BANK LTD, IN FAVOUR OF THE 2ND RESPONDENT

¶45

EXHIBIT P15 A TRUE COPY OF THE S.O.2986(E) DATED 16.9.2016 BY THE DEPARTMENT OF REVENUE, MINISITRY OF FINANCE EXHIBIT P16 A TRUE COPY OF THE NOTIFICATION NO.10017/LEG.A2/2017/LAW DATED 16.9.2017 BY THE LAW SECRETARY, GOVERNMENT OF KERALA, LAW (LEGISLATION-A) DEPARTMENT

¶46

RESPONDENT'S EXHIBITS

¶47

R2(A) TRUE COPY OF THE PRE-ASSESSMENT NOTICE NO.32151097934 /20.10.2016 FOR THE YEAR 2012-13 ISSUED AT THE BUSINESS PLACE ADDRESS AT ALUVA.

¶48

R2(B) TRUE COPY OF THE NOTICE NO.32151097934/ 20.10.2016 ISSUED AT THE ADDRESS OF THE DIRECTOR SRI.RAMESH BALIGA BANTWAL

¶49

R2(C) TRUE COPY OF THE REVISED NOTICE U/S.25(1) FOR THE YEAR 2012-13 ISSUED AT THE ADDRESS OF SRI RAMESH BALIGA BANTWAL

¶50

R2(D) TRUE COPIES OF THE PENALTY NOTICE FOR THE PERIOD 2012-13 AND PRE ASSESSMENT NOTICE FOR THE YEAR 2013-14 ISSUED AT THE ADDRESS OF THE DIRECTOR SRI RAMESH BALIGA BANTWAL

M/S.Shobha Projects and Trades (P) Ltd. v. State of Kerala

Case brief

What is this about?

What did the court decide?

M/S.Shobha Projects and Trades (P) Ltd. v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

G. Soman, Vs State of Kerala

N.O.George Vs the Chief Executive Officer

R.Poobalakrishnan, Vs the Intelligence Officer

Rajeev.K.Nair, Vs the State Tax Officer

P.a.Alikunju, Vs the Commercial Tax Officer II

T P Usman Koya Haji Vs the Employees State Insurance Corporation