S.Najumudheen vs. The State Tax Officer - Kerala High Court, 16 October 2018

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU TUESDAY ,THE 16TH DAY OF OCTOBER 2018 / 24TH ASWINA, 1940 WP(C).No. 32810 of 2018 PETITIONER/S: S.NAJUMUDHEEN AGED 43 YEARS PROPRIETOR, M/S. JASNA SAW MILL, VANDITHAVALAM, PALAKKAD DISTRICT. BY ADVS. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON RESPONDENT/S: 1 THE STATE TAX OFFICER CHITTUR - 678 101. 2 THE STATE TAX OFFICER (IB) STATE GST DEPARTMENT, KOTTAYAM - 686 001. DR THUSHARA JAMES , GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 32810 of 2018 2

JUDGMENT The petitioner, an assessee under the KVAT Act on the rolls of the 1st respondent, received the Ext.P4 notice. By that notice, the 1st respondent proposed to levy penalty on the petitioner for the assessment year 2015-2016. Indeed, through the Ext.P4(a), the petitioner pleaded with the authority to drop the proceedings or to provide him an opportunity of personal hearing. But the 2nd respondent passed the Ex.P5 order of penalty, which is assailed in this writ petition.

Sri Harisankar V. Menon, the petitioner's counsel, draws my attention to the Ext.P1 and asserts that, earlier, on 08.09.2016, the petitioner through an e-mail sought the authority's permission to revise the returns. And in the Ext.P4(a) reply, too, he has mentioned about the e-mail request. According to him, though the 2nd respondent has faithfully re-produced the petitoner's entire reply, he has not adverted to the petitioner’s principal plea for personal hearing and request for the revision of tax.

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Eventually, Sri Menon has contended that the Department has contradicted itself. To elaborate, he submits that about the same transaction, another assessing officer, through the Ext.P3, has taken a different stand. According to him, Ext. P5 stands vitiated.

In reply, Dr. Thushara James, the Government Pleader, draws my attention to the Ext. P5, to contend that the petitioner has been provided sufficient opportunity. According to her, once the petitioner's reply has been considered, the petitioner’s insistance on personal hearing assumes no importance. ‘Hearing’ does not under all circumstances amount to personal hearing. She has also tried to refute the petitioner's allegation that on the same transaction another assessing officer has taken a different stand. According to her, once it is a different authority, the allegation of departmental contradiction makes no impact. For every adjudicating authoirty acts independently and objectively, she concludes.

Heard Sri V. Harisankar Menon, the petitioner’s counsel, and Dr. Thushara James, the Government Pleader, besides perusing the record.

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Indeed, the E-mail produced in the Ext.P1 series of documents remains undisputed. Besides that, the petitioner's insistance on personal hearing stands squarely rejected even without any reference to it in the Ext.P5. 7. I reckon the petitioner’s contention that on the same transaction, two assessing authorities of the Department have taken contradictory stands also merits scrutiny. Under these circumstances, I hold that the Petitioner has not had sufficient opportunity to defend himself. So it is appopriate for the Court to set aside the Ext.P5. And I do so. As a consequence, I remand the matter to the 2nd respondent for a fresh adjudication, with an opportunity of personal hearing to the petitioner. DAMA SESHADRI NAIDU JUDGE sree

WP(C).No. 32810 of 2018 5 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT DATED 08.08.2016. EXHIBIT P1 A COPY OF THE E-MAIL SENT BY THE PETITIONER TO THE IST RESPONDENT. EXHIBIT P2 COPY OF ORDER ISSUED BY THE 1ST RESPONDENT DATED 19.09.2016. EXHIBIT P3 COPY OF NOTICE ISSUED BY THE INTELLIGENCE OFFICER, COMMERCIAL TAXES, PALAKKAD DATED 03.09.2016. EXHIBIT P3 A COPY OF REPLY FILED BY THE PETITIONER BEFORE THE INTELLIGENCE OFFICER, PALAKKAD DATED 17.09.2016. EXHIBIT P4 COPY OF NOTICE ISSUED BY THE 2ND RESPONDENT DATED 04.10.2017. EXHIBIT P4 A COPY OF OBJECTION FILED BY THE PETITIONER BEFORE THE INTELLIGENCE OFFICER, KOTTAYAM DATED 25.10.2017. EXHIBIT P5 COPY OF ORDER ISSUED BY THE 2ND RESPONDENT DATED 31.08.2018.