M.J.Aboobacker vs. The Commercial Tax Officer
Original PDF →IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI WEDNE AY, THE 07TH DAY OF AUGUST 2019 / 16TH SRAVANA, 1941 WP(C).No.17387 OF 2019(W) PETITIONERS: M.J.ABOOBACKER,AGED 43 YEARS M/ S M.J.M. CHICKEN AGENCIES, ADIYATTIL HOUSE, KALPAKANCHERRY P.O.MALAPPURAM DISTRICT BY ADVS. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON SMT.K.KRISHNA RESPONDENTS: 1 THE COMMERCIAL TAX OFFICER SULTHAN BATHERY-673 592 2 THE ASST. COMMISSIONER (APPEALS), STATE GST DEPARTMENT, WAYANAD-673 121. 3 THE DEPUTY TAHSILDAR (REVENUE RECOVERY) TALUK OFFICE, TIRUR-676 101 OTHER PRESENT: SMT.DR.THUSHARA JAMES -G.P THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC No.17387 of 2019 2 JUDGMENT Dated this the 7th day of August 2019 Petitioner challenges Exts.P3 and P3(a) orders of the second respondent as illegal and are violative of principles of natural justice. The issue arises under KVAT Act. The petitioner, aggrieved by the assessment order dated 1.3.2014 for the assessment year 2012-2013, filed statutory appeal in Ext.P2 before the second respondent. The second respondent vide Ext.P3 order dismissed the appeal. Hence the writ petition.
Mr.Harisankar V.Menon contends that the order of second respondent in Ext.P3 is an ex parte order. The petitioner is entitled to the right of personal hearing while considering and disposing of Ext.P2 appeal. To point out from Ext.P3 this patent omission, the attention of the Court is drawn to the following paragraphs:
The appeal was posted for hearing at first on 14.12.2016 as per the notice dated 24.11.2016. As the appellant did not appear for hearing, the case was posted for further hearing on 15.2.2017 as per the notice dated 2.2.2017. But the notice was returned by the postal authorities. So the final notice for hearing on 15.3.2017 was issued to the appellant through registered post on 27.2.2017. The said notice was returned by the postal authorities stating the reason as “closed” “so
WPC No.17387 of 2019 3 returned to the sender”. All the notices were issued to the communication address provided by the appellant as per the appeal petition. This appeal petition is long pending from 29.4.2014 onwards. The appellant did not turn up for hearing though the case was posted for several occasions. Also the final notice sent to the appellant was returned with the endorsement “closed” “so returned”. So this authority is constrained to dispose the case. In the circumstances, the case is decided on the basis of merits.
The counsel submits that the second respondent ought to have sent notice to the place where the petitioner is actually doing business but not to the old address. It is further stated that the issue is dealt with under Section 25(1) of the Act for the assessment year 2012-2013 and by referring to old address the order in appeal is made. He requests for an opportunity of personal hearing before the second respondent and prays for setting aside Ext.P3 order and remit the matter to the second respondent for consideration and disposal in accordance with law.
Dr.Thushara James replying to the ground raised viz. violation of principles of natural justice submits that the plea now taken is one of convenience and there is no merit in the plea. According to her, respondents have been sending notices to the address furnished by the petitioner in this behalf to the department.
WPC No.17387 of 2019 4
Now the short point for consideration is whether Ext.P3 order satisfies the requirement of providing personal hearing to petitioner while disposing of Ext.P2 appeal or not.
The respondents do not dispute that the petitioner is entitled to audience or personal hearing while disposing of Ext.P2 appeal. The explanation offered by the respondents is that the notices sent to the address given in the memorandum of appeal would serve the purpose of intimation and there is no representation, hence the second respondent was compelled to proceed to dispose of the appeal ex parte. The reply of respondents can certainly be appreciated, if the petitioner continued to do business at the same place even as late as 2017. Ext.P4 evidences discontinuation of business and cancellation of registration with effect from 15.7.2015. The cancellation of registration further goes to show that the petitioner is not only out of business but also not doing business at the place shown in Ext.P2. The introductory part of Ext.P3 order which is excerpted goes to show that the petitioner is not heard while disposing of Ext.P3 appeal. The petitioner refers to Ext.P4 cancellation order issued under the Act. Therefore the
WPC No.17387 of 2019 5 address shown in Ext.P2 appeal could not be treated as the address for communication of notice on the petitioner while hearing and disposing of Ext.P2 appeal. In other words, the petitioner, referred to the date of cancellation i.e. 3.7.2015, cannot be presumed to be doing business at the address shown in Ext.P2 appeal. The reason that in spite of affording opportunity, the petitioner did not produce books of account is untenable is liable to be set aside. It is further contended by her that all other covers sent by the department to the address shown in the memorandum of appeal were received and only an excerption to the notice sent by the second respondent is disputed. She presses for dismissing the writ petition.
To meet the ends of justice and also afford opportunity of hearing to petitioner while considering and disposing of Ext.P2 Appeal, I am satisfied the order in Ext.P3 could be set aside as violative of principles of natural justice. Hence Ext.P3 order is set aside. The matter is remitted to the second respondent for consideration and disposal in accordance with law.
The petitioner is directed to appear before the second
WPC No.17387 of 2019 6 respondent on 6.9.2019 accompanied by a copy of this judgment and also the books on which the petitioner intends to reply upon in this behalf. The second respondent either on 6.9.2019 or on any other date fixed for hearing in this behalf and intimate to the petitioner disposes of Ext.P2 appeal. The appeal is considered and disposed of expeditiously, preferably on or before 30th of September 2019. S.V.BHATTI JUDGE css/
WPC No.17387 of 2019 7 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 COPY OF ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2012-13 DATED 13.2.2014 EXHIBIT P1 A COPY OF ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2013-14 DATED 12.3.2014 EXHIBIT P2 COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR THE YEAR 2012-13 DATED 22.4.2014 EXHIBIT P2 A COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT FOR THE YEAR 2013-14 DATED 22.4.2014 EXHIBIT P3 COPY OF CERTIFIED APPELLATE ORDER IN VATA NO 714/14 ISSUED BY THE ASST. COMMISSIONER (APPEALS) WAYANAD DATED 15.4.2017 EXHIBIT P3 A COPY OF CERTIFIED APPELLATE ORDER IN VATA NO 745/14 ISSUED BY THE ASST. COMMISSIONER (APPEALS) WAYANAD DATED 15.4.2017 EXHIBIT P4 COPY OF WEB PAGE OF THE REGISTRATION STATUS OF THE PETITIONER DATED 3.7.2015
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.