C P Joy vs. The Assistant Commissioner-I - Kerala High Court, 10 October 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR THUR AY, THE 10TH DAY OF OCTOBER 2019 / 18TH ASWINA, 1941 WP(C).No.15329 OF 2019(M) PETITIONER/S: C P JOY, PROPRIETOR, M/S. MATHA SAW MILL, MAROTTICHODU, MATTOOR, KALADY 683 574 BY ADVS. SRI.P.N.DAMODARAN NAMBOODIRI SHRI. HRITHWIK D. NAMBOOTHIRI RESPONDENT/S: 1 THE ASSISTANT COMMISSIONER-I STATE GOODS AND SERVICES TAX, SPECIAL CIRCLE, MATTANCHERRY AT ALUVA 683101 2 THE DEPUTY COMMISSIONER (APPEALS), STATE GST DEPARTMENT, ERNAKULAM 682 015 3 THE ASSISTANT COMMISSIONER, STATE GST DEPARTMENT,MATTANCHERRY, COCHIN 682 002. SMT.THUSHARA JAMES GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No.15329 OF 2019(M) 2 JUDGMENT The challenge in this writ petition is against Exts.P5 and P5A orders of the first appellate authority, passed in appeals preferred by the petitioner against orders of assignment under the KVAT Act for the assessment years 2011-12 and 2012-13 respectively. The sole ground on which the appellate orders are challenged in this writ petition is the contention that the petitioner was not afforded an effective opportunity of hearing in as much as he could not attend the hearing on the date on which it was posted, on account of the hospitalisation of his counsel's mother. It is, therefore, contended that the impugned orders are vitiated on account of a non-compliance with the principles of natural justice.

I have heard the learned counsel appearing for the petitioner and also the learned Government Pleader appearing for the respondents.

On a consideration of the facts and circumstances of the case and the submissions made across the Bar, I find from Exts.P5 and P5A orders, as also Ext.P4 request for adjournment submitted on behalf of the petitioner, that the adjournment on the ground mentioned above was sought in connection with an earlier hearing, which was scheduled on 05.09.2018. The said adjournment request was granted and on the said request letter itself, the subsequent date of posting, namely 19.09.2018, was indicated. This would mean that the request for adjournment sought for by the petitioner was granted by the appellate authority, who then posted the matter for hearing on 19.09.2018. On the said date, however, the petitioner was not represented before the authority. There was no request for adjournment either. It was under those circumstances that the authority

WP(C).No.15329 OF 2019(M) 3 proceeded to pass Exts.P5 and P5A orders, taking note of the non-appearance of the petitioner. Exts.P5 and P5A orders cannot therefore be seen as vitiated on account of a violation of the rules of natural justice. I do not also find that the said order as vitiated on account of any juri ictional error so as to warrant an interference with the same in these proceedings under Article 226 of the Constitution of India. In the result, the writ petition in its challenge against Exts.P5 and P5A orders fails and is accordingly dismissed. Taking note of the submission of the learned counsel for the petitioner that he would require some time to move the appellate authority against Exts.P5 and P5A orders, I direct that recovery proceedings for the recovery of the amounts confirmed against the petitioner by the assessment orders in question shall be kept in abeyance for a period of one month from the date of receipt of a copy of this judgment so as to enable the petitioner to move the appellate authority, in the meanwhile. The petitioner shall produce a copy of the writ petition together with a copy of this judgment before the respondents for further action. A.K.JAYASANKARAN NAMBIAR

JUDGE WP(C).No.15329 OF 2019(M) 4 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE ASSESSMENT ORDER NO. 3215084884/2011-12 DATED 28-09-2016 ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2011-12 EXHIBIT P1 AOF THE ASSESSMENT ORDER NO. 32150814884/2012-13 DATED 22-12-2016 ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2012-13 EXHIBIT P2OF 1ST APPEAL DATED 22-05-2017 FILED BY THE PETITIONER BEFORE 2ND RESPONDENT. EXHIBIT P2 AOF 1ST APPEAL DATED 22-05-2017 FILED BY THE PETITIONER BEFORE 2ND RESPONDENT. EXHIBIT P3OF THE POSTING NOTICE NO. KVAT 1909/17 & 1910/17 DATED 20-08-2018 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXHIBIT P4OF THE ADJOURNMENT REQUEST DATED 05-09-2019 ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT. EXHIBIT P5OF THE APPELLATE ORDER KVATA NO. 1909/17 DATED 24-10-2018 FOR THE YEAR 2011- 12 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXHIBIT P5 AOF THE APPELLATE ORDER KVATA NO. 1910/17 DATED 24-010-2018 FOR THE YEAR 2012-13 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.