Euro Business System vs. State Of Kerala - Kerala High Court, 18 June 2021

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN FRIDAY, THE 18TH DAY OF JUNE 2021 / 28TH JYAISHTA, 1943 WA NO. 778 OF 2021 AGAINST THE JUDGMENT IN WP(C) 6224/2021 OF HIGH COURT OF KERALA, ERNAKULAM APPELLANT/: M/s. EURO BUSINESS SYSTEM ROOM NO. A. 381, 4TH FLOOR, BLOCK 1, NEW BUS STAND, THAVAKKARA, KANNUR - 67 0001, REPRESENTED BY ITS MANAGING PARTNER - MR. PRAKASH T. BY ADVS. M.GOPIKRISHNAN NAMBIAR SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM SRI.RAJA KANNAN RESPONDENT/S: 1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695001. 2 STATE TAX OFFICER 3RD CIRCLE, KERALA STATE GST DEPARTMENT, 4TH FLOOR, BSNL BHAVAN, SOUTH BAZAR, KANNUR - 670012. BY ADV SR GOVERNMENT PLEADER SRI.SHAMSUDHEEN V.K. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 18.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WA NO.778 OF 2021 ..2.. JUDGMENT Murali Purushothaman, J. The appellant, a dealer of printers, peripherals and its parts has approached this Court challenging Ext.P5 order of assessment issued by the State Tax Officer and Ext.P10 order rejecting the rectification application. Ext.P5 order of assessment is impugned on the ground that the same is passed without considering Ext.P4 reply/objection filed by the appellant and Ext.P10 order rejecting the rectification application is challenged on the ground that it was passed without addressing the apparent error on the face of record pointed out by the appellant. The learned Single Judge dismissed the writ petition holding that the question whether the assessing officer ought to have considered the reply/objection submitted subsequently needs to be considered by the statutory appellate authority by calling for

WA NO.778 OF 2021 ..3.. records and proceedings of the assessment order and the appellant has remedy of approaching the appellate authority in that regard. The learned Single Judge held that the error pointed out by the appellant in the rectification application is not self evident or manifest and refused to interfere with Ext.P10 order rejecting the rectification application. It is challenging the judgment of the learned Single Judge dismissing the writ petition this writ appeal is preferred.

We have heard Sri. Kurian Thomas, the learned Counsel for the appellant and Sri. V.K. Shamsudheen, the learned Senior Government Pleader for the respondents.

According to the Appellant, in response to Ext.P1 pre- assessment notice dated 17.08.2020 issued under Section 25 (1) of the Kerala Value Added Tax Act, 2003 (KVAT Act, for short) for the year 2015-16, the appellant appeared before the State Tax Officer on 29.09.2020 and filed Ext.P3 reply. Since the appellant had objection to the proposal in the pre- assessment notice with regard to sale of “Task Alfa 180”

WA NO.778 OF 2021 ..4.. photocopy machines, the appellant submitted Ext.P4 additional reply/objection whereby the appellant requested for the details relating to the allegation regarding sale of “Task Alfa 180” photocopy machines.

According to the appellant, the 2nd respondent received Ext.P4 additional reply personally on 30.10.2020 as is evident from the endorsement on Ext. P4. However, on 25.11.2020, the appellant received Ext.P5 order of assessment dated 30.09.2020, wherein the 2nd respondent completed the best judgment assessment for the year 2015- 16, by considering only Ext.P3 reply and without considering Ext.P4 reply/objection. The appellant points out that, in Ext. P5 order, the 2nd respondent has originally put the date of order as 30.10.2020, which is then scorred-off and written as 30.09.2020. According to the appellant, Ext.P5 order was despatched from the office of the 2nd respondent after 55 days from the date of order borne out from Ext.P5, and the order is predated so as to show on record that the order of

WA NO.778 OF 2021 ..5.. assessment was issued much prior to the filing of Ext.P4 reply. The appellant contends that, it is trite law that, until the assessment order is served on the assessee, the assessment is not complete and Ext. P4 additional objection/reply filed by the assessee on 30.10.2020 ought to have been considered by the assessing authority.

When this writ appeal came up for admission today, the learned Senior Government Pleader made available the manuscript copy of Ext.P5 order.

Having perused Ext.P5 the typed copy of the assessment order and also the manuscript copy of the same and considering the fact that Ext.P5 was despatched from the office of the 2nd respondent only after 55 days from the date of order shown in Ext.P5, that too after receipt of Ext.P4 objection/reply filed by the assessee, we find that Ext.P4 additional objection/reply filed by the assessee was well within the knowledge of the 2nd respondent before the order was issued for communication to the assessee. Non

WA NO.778 OF 2021 ..6.. consideration of Ext.P4 additional objection/reply filed by the assessee therefore amounts to violation of the principles of natural justice. Accordingly Ext.P5 is set aside. The 2nd respondent is directed to pass an order afresh by looking into Ext.P4 additional objection/reply given by the assessee on 30.10.2020. The said exercise shall be completed within eight weeks from the date of receipt of copy of this judgment. We make it clear that we have not expressed any opinion on the merits of the matter.

The appeal is allowed as indicated above. S.V.BHATTI JUDGE MURALI PURUSHOTHAMAN JUDGE SB //// P.A to Judge