Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 11TH DAY OF JANUARY 2023 / 21ST POUSHA, 1944 WP(C) NO. 27773 OF 2022 PETITIONER:
BALASUBRAHMANYAN NABEESAN, AGED 62 YEARS, S/O. KESAVAN NAMBEESAN, PUSHPAKATH HOUSE, KUZHALMANNAM, KUZHALMANNAM – 678 624.
BY ADVS.
K.ANAND AMEER SALIM RESPONDENTS:
1 DEPUTY COMMISSIONER OF STATE TAX, PALAKKAD, REPRESENTED BY JOINT COMMISSIONER OF STATE TAX, 1ST FLOOR, STATE GST COMPLEX, BEHIND CIVIL STATION, PALAKKAD – 678 001.
2 STATE TAX OFFICER, (FORMERLY COMMERCIAL TAX OFFICER), STATE TAX OFFICE, ALATHUR STATE GST OFFICE, ALATHUR – 678 541.
3 DEPUTY TAHSILDAR ALATHUR TALUK OFFICE, ALATHUR TALUK, ALATHUR – 678 541 PALAKKAD BY ADV. THUSHARA JAMES (SR GP) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 27773 OF 2022 2 JUDGMENT The petitioner has approached this Court being aggrieved by the fact that proceedings have been initiated against the petitioner for recovery of tax payable by the petitioner under the provisions of the Kerala Value Added Tax Act, 2003 for the period from 2012 – 2015. It is the case of the petitioner that the petitioner had no notice of the assessment proceedings and that even the copy of the assessment order has not been communicated to the petitioner.
2.
A counter affidavit has been filed by the 2nd respondent, where it is pointed out that notices were issued to the petitioner and the petitioner initially sought for an adjournment. It is stated that thereafter the notices issued to the petitioner were returned unclaimed and therefore, the petitioner cannot claim that the assessment was completed without proper notice. It is submitted that Section 88 of the Kerala Value Added Tax Act provides that where notices issued to an assessee by registered post or by courier service at the last known place of residence / business, that would be sufficient service for the purposes of completing proceedings under the Act. The learned Government Pleader also points out that in respect of the
WP(C) NO. 27773 OF 2022 3 assessment order for assessment year 2015-16, the petitioner had actually sought for instalment. However, no such instalment was paid by the petitioner.
3.
The learned counsel appearing for the petitioner would submit that the documents produced along with the counter affidavit of the 2nd respondent relate only to one among the assessment years in question and there is nothing to show that such notices have been issued in respect of the other years as well.
4.
Having heard the learned counsel appearing for the petitioner and the learned Senior Government Pleader appearing for the respondents, I am of the view that prima facie it is difficult to accept the case of the petitioner that the proceedings were completed against the petitioner without issuing notice to the petitioner. Exts.R2(a) R2(b) and R2(c) are prima facie sufficient to indicate that the petitioner failed to cooperate with the assessment after having received the notices. However, the 2nd respondent does not appear to have a case that the orders of assessment in respect of the assessment years in question namely, assessment years 2012-13, 2013-14, 2014-15 and 2015- 16 have actually been issued served on the petitioner. Since there is nothing to show at present that the assessment orders
WP(C) NO. 27773 OF 2022 4 have actually been served on the petitioner, for the aforesaid assessment years, this writ petition will stand disposed of directing the 2nd respondent to issue certified copies of the assessment orders in respect of the assessment years mentioned above on an application being made by the petitioner for the same. Such applicaton shall be made within a period of one week from the date of receipt of a certified copy of this judgment.
The petitioner shall file statutory appeal before the 1st appellate authority against the orders of assessment within a period of four weeks from the date on which the copies of the assessment order are issued to the petitioner in terms of the directions contained above. If the petitioner files the statutory appeals within the time granted above along with applications for stay, the revenue recovery proceedings against the petitioner shall remain suspended till a decision is taken by the 1st appellate authority on the stay petitions to be filed by the petitioner.
The writ petition is disposed of as above.
Sd/- GOPINATH P.
JUDGE DK
WP(C) NO. 27773 OF 2022 5 APPENDIX OF WP(C) 27773/2022 PETITIONER EXHIBITS Exhibit p1 TRUE COPY OF THE DEMAND NOTICE DATED 05.07.2022 ISSUED BY THE 3RD RESPONDENT FOR THE PERIOD 2012 ISSUED U/S 7 OF THE REVENUE RECOVERY ACT Exhibit P1(a) TRUE COPY DEMAND NOTICE DATED 05.07.2022 U/S 34 OF THE REVENUE RECOVERY ACT DATED 05.07.2022 FOR THE PERIOD 2012 ExhibitP2 TRUE COPY OF THE DEMAND NOTICE DATED 05.07.2022 ISSUED BY THE 3RD RESPONDENT FOR THE PERIOD 2013 ISSUED U/S 7 OF THE REVENUE RECOVERY ACT Exhibit P2(a) TRUE COPY DEMAND NOTICE DATED 05.07.2022 U/S 34 OF THE REVENUE RECOVERY ACT DATED 05.07.2022 FOR THE PERIOD 2013 Exhibit P3 TRUE COPY OF THE DEMAND NOTICE DATED 05.07.2022 ISSUED BY THE 3RD RESPONDENT FOR THE PERIOD 2014 ISSUED U/S 7 OF THE REVENUE RECOVERY ACT Exhibit P3(a) TRUE COPY DEMAND NOTICE DATED 05.07.2022 U/S 34 OF THE REVENUE RECOVERY ACT DATED 05.07.2022 FOR THE PERIOD 2014 Exhibit P4 TRUE COPY OF THE DEMAND NOTICE DATED 05.07.2022 ISSUED BY THE 3RD RESPONDENT FOR THE PERIOD 2015 ISSUED U/S 7 OF THE REVENUE RECOVERY ACT Exhibit p4(a) TRUE COPY DEMAND NOTICE DATED 05.07.2022 U/S 34 OF THE REVENUE RECOVERY ACT DATED 05.07.2022 FOR THE PERIOD 2015 RESPONDENT EXHIBITS Exhibit R2(a) The copy of the acknowledgement card picturing the proof of service of notice
WP(C) NO. 27773 OF 2022 6 Exhibit R2(b) True copy of the said cover showing the endorsement "unclaimed" returned by the postal department Exhibit R2(c) The copy of the said cover showing the endorsement "unclaimed" returned by the postal department