M/S. Pinnacle Motor Works PVT. LTD. vs. The Assistant Commissioner - Kerala High Court, 04 February 2021

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.M.BADAR THUR AY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942 WP(C).No.2837 OF 2021(D) PETITIONER/S: M/S. PINNACLE MOTOR WORKS PVT. LTD. KUTTANELLUR, THRISSUR, PIN - 680 006, REPRESENTED BY ITS DIRECTOR GAABI GAFOOR. BY ADVS. SRI.SANTHOSH P.ABRAHAM SRI.SANTHOSH P.ABRAHAM RESPONDENT/S: 1 THE ASSISTANT COMMISSIONER, (FORMERLY STATE TAX OFFICER), 4TH CIRCLE, STATE GOODS AND SERVICE TAX DEPARTMENT KERALA, SGST COMPLEX, POOTHOLE, THRISSUR - 680 004. 2 THE DEPUTY COMMISSIONER STATE GOODS AND SERVICE TAX DEPARTMENT KERALA, SGST COMPLEX, POOTHOLE, THRISSUR - 680 004. 3 THE JOINT COMMISSIONER STATE GST DEPARTMENT KERALA, SGST COMPLEX, POOTHOLE, THRISSUR - 680 004. SMT.THUSHARA JAMES, GOVERNMENT PLEADER . THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No.2837 OF 2021 2 JUDGMENT Dated this the 4th day of February 2021

By this petition, the petitioner prays for quashing Ext.P5 assessment order dated 09.12.2020

Heard both sides.

The first notice under Section 25(1) of the Kerala Value Added Tax Act (hereinafter referred to as 'the KVAT Act') at Ext.P1 was issued to the petitioner on 23.09.2020 in respect of the assessment year 2015-2016. It was followed by another additional notice at Ext.P3 dated 09.12.2020, which was received by the petitioner on 14.12.2020. The petitioner moved an application for adjournment on 14.12.2020 itself. It was considered and granted. An order in writing came to be passed adjourning the proceedings of the assessment on 17.12.2020 by the Assessing Officer. However, ignoring this order of adjournment, on 09.12.2020 itself, final order of assessment came to be passed and the same is at Ext.P5. 4. Learned counsel appearing for the petitioner argued that once authority has granted adjournment to the petitioner and the proceedings of assessment were deferred to 17.12.2020, the Assessing Officer was not justified in passing the final order of

WP(C).No.2837 OF 2021 3 assessment on 09.12.2020 itself without hearing the petitioner and therefore, the impugned order at Ext.P5 needs to be quashed and set aside.

As against this, learned Government Pleader drew my attention to the impugned order to point out that ample time and several adjournments were already availed by the petitioner and therefore, there was no alternative with the Assessing Officer, but to finalise the assessment.

I have considered the submissions so advanced and perused the materials placed before me.

It is seen from the records that first notice of assessment was followed by subsequent additional notice pointing out few more defects to the petitioner and this additional notice under Section 25(1) of the KVAT Act is reportedly served on the petitioner 14.12.2020. On the very same day, he moved an adjournment application and the proceedings were deferred to 17.12.2020 as reflected from the communication at Ext.P4. However, unfortunately, the assessment was finalised on 09.12.2020 itself by the order at Ext.P5. This clearly reflects that the impugned assessment order was passed without hearing the petitioner. The fact that the assessment proceedings were

WP(C).No.2837 OF 2021 4 adjourned to 17.12.2020 is evidenced from Ext.P4. Therefore, as the impugned order is passed in violation of the principles of natural justice, the petition is allowed with the following directions:-

The impugned order at Ext.P5 dated 09.12.2020 passed by the 1sr respondent Assistant Commissioner, 4th Circle, Thrissur is quashed and set aside. The matter is remitted to the said authority for fresh consideration and for passing the fresh order of assessment after hearing the petitioner. The petitioner is directed to appear before the said authority at 11.30 am on 16.02.2021. Parties to act on the authenticated copy of this judgment.

The writ petition is accordingly allowed. A.M.BADAR ajt JUDGE

WP(C).No.2837 OF 2021 5 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE NOTICE NO.32081428855/2015-16 DATED 23.09.2020 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P2OF THE NOTICE NO.32081428855/15- 16 DATED 13.10.2020 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P3OF THE NOTICE NO.32081428855/2015-16 DATED 09.12.2020 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P4OF THE SCREEN SHOT OF E-MAIL DATED 14.12.2020 SENT BY THE PETITIONER TO THE 1ST RESPONDENT. EXHIBIT P5OF THE ORDER NO.32081428855/2015- 16 DATED 09.12.2020 ISSUED BY THE 1ST RESPONDENT.