Aneer C.M. vs. Asst.Commissioner
Original PDF →IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS WEDNE AY, THE 15TH DAY OF JANUARY 2020 / 25TH POUSHA, 1941 WP(C).No.1004 OF 2020(A) PETITIONER: ANEER C.M. AGED 33 YEARS PROPRIETOR, C.M.CONSTRUCTIONS, II/37F, MUTTOM, THAIKKATTUKARA P.O, ALUVA 683106, ERNAKULAM DISTRICT. BY ADVS. SRI.K.N.SREEKUMARAN SRI.N.SANTHOSHKUMAR SRI.N.JAYAKUMAR RESPONDENT: 1 ASST.COMMISSIONER (WORKS CONTRACT) O/O THE DEPUTY COMMISSIONER, STATE GOODS AND SERVICES TAX DEPARTMENT, TAX COMPLEX, MATTANCHERRY, KOCHI 682 002 2 ASSISTANT COMMISSIONER OF STATE TAX, STATE GOODS AND SERVICES TAX DEPARTMENT, TAX COMPLEX, MATTANCHERRY, KOCHI 682 002 BY ADVS. SMT.M.M.JASMINE, GOVT.PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P(C). No. 1004 of 2020 2 ALEXANDER THOMAS, J. ------------------------------------ W.P(C). No. 1004 of 2020 ------------------------------------ Dated this the 15th day of January, 2020 JUDGMENT The case projected in this writ petition (Civil) is as follows:- The petitioner has been registered under the KVAT Act till migration to the GST regime. That the details of the place of business were duly incorporated in the KVATIS/GSTN portal as evident from Ext.P2 certificate dated 17-07-2018 and Ext.P3(a). But the respondent made arbitrary best judgment assessment u/s 25(1) of the KVAT Act for 2013-14 without serving proper show cause notice to the petitioner. According to the 1st respondent, notice dated 02-11-2019 issued to the petitioner was returned by the postal authorities and hence assessment was completed ex parte. It is stated that the petitioner has been carrying on his business in the same business place since the very inception of business. That the details of the contact phone number and E-mail ID of the petitioner being very much available in the assessment
W.P(C). No. 1004 of 2020 3 records and returns of the petitioner, proper service ought to have been effected before passing the exparte assessment order. It is argued that the impugned order fastens unpredicted tax liability on the petitioner on untenable allegations and that the assessment order violates the principles of natural justice and hence it is void. The petitioner would contend that Ext.P3 order has been passed without proper service of show cause notice to the petitioner and hence it militates against the provisions under Sec.25(1) of the KVAT Act and the principles of natural justice. The petitioner would place reliance on the provisions contained in Sec.25 (1) and Sec.88 of the KVAT Act and also on various decisions as on Suzlon Infrastructure Service Ltd v. CTO [2010 (3) KHC 299] and Rapti Commission Agency v. State of Uttar Pradesh [2006 (147) STC 566 (SC)]. It is in the light of these averments and contentions that the petitioner has filed instant Writ petition (Civi) with the following prayers: i) Call for the records leading to Ext.P3 and quash the same by issuance of a writ of certiorari or any other appropriate writ, direction or order found fit and proper by this Honourable Court. ii). Issue any other appropriate writ, direction or order
W.P(C). No. 1004 of 2020 4 found fit and proper by this Honourable court on the facts and in the circumstances of the case.
Heard Sri.K.N.Sreekumaran, learned counsel appearing for the petitioner, and Smt.M.M.Jasmine, learned counsel appearing for the respondent.
It is not a serious dispute that the impugned Ext.P3 order has been passed without proper service of the show cause notice to the petitioner and hence the Clause against the mandate contentions Sec.25(1) of the KVAT Act and also therefore in derogation of the well-known principles of natural justice and fairness.
Without getting into the merits of controversy in any manner and solely on the ground of Ext.P2 assessment order, it is ordered that the impugned Ext.P2 assessment order will stand set aside and the matter in relation to assessment thereto will stand remitted to the 1st respondent for consideration and decision afresh. The 1st respondent will permit the petitioner to submit written submissions in the matter and thereafter 1st respondent will afford reasonable opportunity of being heard to the petitioner
W.P(C). No. 1004 of 2020 5 through authorised representative or counsel, if any, and then thereafter pass fresh orders in the matter of assessment in question, without much delay and preferably within a reasonable time limit that may be appropriately fixed by the 1st respondent. With these observations and directions, the above Writ Petition (Civil) stands disposed of. ALEXANDER THOMAS, JUDGE KAS
W.P(C). No. 1004 of 2020 6 APPENDIX PETITIONER'S
/S EXHIBITS
: EXHIBIT P1OF THE ANNUAL RETURN FOR THE YEAR 2013-14 FILED BY THE PETITIONER TO THE 1ST RESPONDENT EXHIBIT P2OF THE CERTIFICATE OF REGISTRATION IN FORM GST REG-06 DATED 17-07-2018 ISSUED BY THE RESPONDENT EXHIBIT P3OF THE ASSESSMENT ORDER NO. 3215000903/2013-14 DATED 30-11-2019 EXHIBIT P3AOF THE POSTAL REGISTERED ENVELOPE BEARING PETITIOENR'S ADDRESS EXHIBIT P4OF THE RECTIFICATION REQUEST DATED 8-1-2020 SUBMITTED BEFORE THE 1ST RESPONDENT. RESPONDENT'S
/S EXHIBITS
: NIL //// PA TO JUDGE
Reproduced from the public record of the Kerala High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.