M/S. Increations Designs And Contracts (PVT) LTD vs. The Asst. Commissioner (Wc)
Original PDF →IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR TUE AY, THE 24TH DAY OF SEPTEMBER 2019 / 2ND ASWINA, 1941 WP(C).No.25265 OF 2019(G) PETITIONER: M/S. INCREATIONS DESIGNS AND CONTRACTS (PVT) LTD IN/16, NEAR POOJARI VALAVU, VADAKODU.P.O., SEAPORT AIRPORT ROAD, THRIKKAKKARA ERNAKULAM, REPRESENTED BY ITS DIRECTOR, SMRUTHY SREEJITH, AGED 38, W/O.SREEJITH.P. BY ADVS. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON RESPONDENTS: 1 THE ASST. COMMISSIONER (WC) STATE GST DEPARTMENT, 9TH FLOOR, REVENUE TOWER, ERNAKULAM, KOCHI-11 2 THE INSPECTING ASST.COMMISSIONER STATE GST DEPT, KAKKANADU, KOCHI-30 BY GOVERNMENT PLEADER SRI.THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.25265 OF 2019(G) 2 JUDGMENT The petitioner is a private limited company engaged in the execution of a works contract and an assessee under the Kerala Value Added Tax Act (hereinafter referred to as 'the KVAT Act') on the rolls of the 1st respondent. In the writ petition, he is aggrieved by Ext.P3 assessment order that was passed ex-parte and Ext.P5 order passed in a rectification application where the point raised by the petitioner was that the assessment order has been passed ex-parte and without taking note of vital contentions of the petitioner on the merits of the case. It is pointed out that, while the petitioner had furnished a reply to the assessment proposals, and the reply was acknowledged by the 1st respondent, Ext.P3 assessment order was passed two days before the date of acknowledgment of the reply, and hence came to be passed without considering the pertinent objections that were taken in the said reply preferred by the petitioner. While the petitioner thereafter attempted to get the mistake in the assessment rectified through a rectification application, the same also came to be dismissed by Ext.P5 order and it is under these circumstances, that the petitioner is now before this Court through the present Writ Petition.
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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 that it is not in dispute that Ext.P3 assessment order was one that was passed ex- parte. It is also not in dispute that the reply that was preferred by the petitioner to the assessment proposals were received by the 1st respondent on 10.12.2018. Three days prior to that, on 07.12.2018, Ext.P3 assessment order was passed and the order indicates that it was the view of the Assessing Officer that the delay occasioned by the petitioner in filing the reply was an exercise to protract the assessment proceedings. Inasmuch as the fact of receipt of the reply to the pre-assessment notice on 10.12.2018 would clearly indicate that there was no attempt by the petitioner to protract proceedings, I am of the view that the 1st respondent ought not to have acted in such haste in a matter pertaining to an assessment of the petitioner under the KVAT Act. I find that Ext.P3 assessment order is one that was vitiated by a non-compliance with the rules of natural justice. I
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therefore quash the same and direct the 1st respondent to complete the assessment proceedings afresh, after hearing the petitioner. As a consequence, I also set aside Ext.P5 order that was passed in proceedings under Section 66 of the KVAT Act. Resultantly, the Writ Petition is allowed by quashing Ext.P3 and P5 orders and directing the 1st respondent to complete the assessment proceedings against the petitioner for the assessment year 2014-2015 afresh, after affording the petitioner an opportunity of hearing. To enable the 1st respondent to do so, I direct the petitioner to appear before the 1st respondent at his office at 11 am on 10.10.2019. The 1st respondent shall pass fresh orders of assessment as directed within a period of three weeks thereafter. The petitioner shall produce a copy of the writ petition together with a copy of this judgment, before the 1st respondent, for further action. A.K.JAYASANKARAN NAMBIAR
JUDGE mns
WP(C).No.25265 OF 2019(G) 5 APPENDIX PETITIONERS EXHIBITS EXHIBIT -P1 COPY OF NOTICE ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2014-2015 DATED 28.09.2018 EXHIBIT P2- COPY OF REPLY WITH EXHIBITS FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 03.12.2018 EXHIBIT P3- COPY OF THE ASSESSMENT ORDER ISSUED BY THE DY. COMMISSIONER DATED 07.12.2018 EXHIBIT P4- COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 10.05.2019 EXHIBIT P5- COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT DATED 26.06.2019 RESPONDENTS EXHIBITS:NIL //// P.A 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.