Urc Construction PVT. LTD. vs. The State Tax Officer (Works Contract) - Kerala High Court, 29 June 2020

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL MONDAY, THE 29TH DAY OF JUNE 2020 / 8TH ASHADHA, 1942 WP(C).No.12796 OF 2020(Y) PETITIONER: URC CONSTRUCTION PVT. LTD. KANJIKODE, PALAKKAD, REPRESENTED BY ITS ASST. GENERAL MANAGER (ACCOUNTS AND TAXATION), S.BOOPATHI, AGED 43, S/O.SELLAPPAN. BY ADVS. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON RESPONDENTS: 1 THE STATE TAX OFFICER (WORKS CONTRACT) STATE GST DEPARTMENT, PALAKKAD - 678 001. 2 THE DEPUTY/JOINT COMMISSIONER (APPEALS) STATE GST DEPARTMENT, PALAKKAD -678 001. 3 THE COMMISSIONER OF COMMERCIAL TAXES TAX TOWERS, KILLIPPALAM, KARAMANA, THIRUVANANTHAPURAM - 695 002. BY DR THUSHARA JAMES, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No.12796 OF 2020(Y) 2 JUDGMENT Dated this the 29th day of June 2020 Against Ext.P1 assessment order for the assessment year 2012-13 under Rule 6(5) of the CST (Kerala) Rules, 1957, petitioner has preferred Ext.P2 appeal along with Ext.P2(a) delay petition and Ext.P2(b) stay petition.

Adv. Sri.Harisankar V. Menon, learned counsel appearing on behalf of the petitioner, submits that petitioner had sought adjournment of the matter vide letters Ext.P5 dated 18.11.2019, Ext. P7 dated 11.12.2019 and Ext.P9 dated 23.01.2020. However, petitioner was not apprised of the aforementioned date, resulting into dismissal of the appeal in default vide Ext. P10 impugned order dated 16.03.2020. He submits that as per Section 55(5) of the Kerala Value Added Tax Act, the appeal cannot be dismissed as appellate authority is not denuded to decide the appeal on merit, in the absence of any representative of

WP(C).No.12796 OF 2020(Y) 3 appellant.

Issue notice before admission. Dr.Thushara James, learned Government Pleader accepts notice and submits that some time is given to the assessee, but did not intentionally appear, resulted into the dismissal of appeal in default, so that by the time appeals are restored or taken afresh, would take the benefits of the limitation as per provisions of Section 25(1) of the KVAT Act and urges this Court for dismissal of the writ petition.

I have heard learned counsel for the parties and appraised the paper books. The facts as referred above are not in dispute. Ext.P2 appeal preferred against Ext.P1 assessment order has been dismissed in default vide Ext. P10 impugned order dated 16.03.2020. Section 55(5) of the Kerala erstwhile Act, 2003 do not specifically envisage any said provisions for the appellate authority to dismiss the appeal in default but said provisions as contended by the

WP(C).No.12796 OF 2020(Y) 4 Government Pleader empowers the appellate authority to pass such an order, it may deem appropriate. I am afraid the aforementioned argument would not come to the aid of learned Government Pleader as nothing prevented the officer to follow the principles of natural justice which are conspicuously absent from the impugned order, as it reflects only of affording three opportunities. It is also a matter of concern that during the period when the appeal was taken up and dismissed in default, there was already a threat of Corona Virus/COVID-19 pandemic, though the lock down only began on 24.03.2020 with a lock down of one day on 22.03.2020. 5. In my view, it is a fit case where appeal is required to be heard afresh, after affording an opportunity of being heard to the petitioner. Accordingly, the Ext.P10 impugned order is set aside. Matter is remitted and ordered to be revisited at the level of first appellate authority to hear the appeal

WP(C).No.12796 OF 2020(Y) 5 afresh, in accordance with law, after affording an opportunity of hearing. Parties or their representatives are directed to appear before the first appellate authority on 15.07.2020 at 11 a.m.

Adv. Sri. Harisankar V. Menon informs the Court that during the period when the appeal was pending, there was already interim stay and believing the aforementioned contention to be correct, I order that once the appeal ordered to be restored, the interim order automatically comes into operation. The writ petition is disposed of accordingly. AMIT RAWAL JUDGE VV

WP(C).No.12796 OF 2020(Y) 6 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2012-13. EXHIBIT P2 COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT 2012-13. EXHIBIT P2(A) COPY OF DELAY PETITION FILED BY THE PETITIONER. EXHIBIT P2(B) COPY OF STAY PETITION FILED BY THE PETITIONER. EXHIBIT P3 COPY OF ORDER ISSUED BY THE 2ND RESPONDENT. EXHIBIT P4 COPY OF NOTICE ISSUED BY THE 2ND RESPONDENT. EXHIBIT P5 COPY OF LETTER SUBMITTED BY THE PETITIONER. EXHIBIT P6 COPY OF NOTICE ISSUED BY THE 2ND RESPONDENT. EXHIBIT P7 COPY OF LETTER SUBMITTED BY THE PETITIONER. EXHIBIT P8 COPY OF NOTICE ISSUED BY THE 2ND RESPONDENT. EXHIBIT P9 COPY OF LETTER SUBMITTED BY THE PETITIONER. EXHIBIT P10 COPY OF APPELLATE ORDER ISSUED BY THE 2ND RESPONDENT.