M.Madheswaran vs. Assistant Commissioner Of State Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI MONDAY, THE 17TH DAY OF JUNE 2019 / 27TH JYAISHTA, 1941 WP(C).No.14970 of 2019 PETITIONER: M.MADHESWARAN AGED 44 YEARS S/O. T.V. MURUGESAN, PROPRIETOR, M/S. MAADHU TRADERS, DOOR NO. RCC9/104, KOZHINJAMPARA ROAD, ERATTIYAL, MARUTHAROAD P.O, PALAKKAD. BY ADVS. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON RESPONDENTS: 1 ASSISTANT COMMISSIONER OF STATE TAX SPECIAL CIRCLE, STATE GST DEPARTMENT, PALAKKAD-678 001 2 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001 DR. THUSHARA JAMES, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No.14970 of 2019 2 JUDGMENT The petitioner prays for the following prayers:- The petitioner contends that Ext.P1 is the pre- assessment notice for the assessment year 2012-13. The notice was received on 28.01.2019 which is much later than the date stated in Ext.P1 i.e., 28.12.2018. Through Ext.P3 notice the enquiry was adjourned to 20.02.2019. Ext.P4 records the following finding on the failure or absence of the petitioner from enquiry. The petitioner refers to serious cardiac ailment from February 2019 and relies on Ext.P5 to prove the illness and the subsequent discharge after treatment was taken in Madras Medical Mission. The petitioner by referring to circumstances beyond his control, it is stated, could not attend the enquiry. Therefore, on the ground of violation of principles of natural justice or denial of opportunity prays for setting aside Ext.P4 and remit the matter to the first respondent for further disposal.

WP(C).No.14970 of 2019 3 Thushara James is that the writ petition under Article 226 of the Constitution of India is not maintainable because effective alternative remedy of appeal is available to the petitioner against the order impugned in the writ petition. On the contention that the petitioner is denied reasonable opportunity, she refers to dates already noted and contends that even assuming without admitting that the medical certificates on which the petitioner now intends to rely on are part of record, the record will not move that far to presume that on the appointed date and time for enquiry the petitioner was unable to attend the enquiry. The counsel contends that there is no violation of principles of natural justice, the writ petition is liable to be dismissed and alternatively, the petitioner can be relegated to workout the remedy of appeal.

WP(C).No.14970 of 2019 4 the petitioner and more particularly in a case of this nature. This Court is of the view that the petitioner if is given an opportunity before the primary authority, the petitioner would not only have an opportunity to file the reply, produce books and establish his case against the proposed decision the respondents intends to make, thereafter invite an order on merits and finally if he is aggrieved by that order, certainly the remedy of appeal can be worked out.

WP(C).No.14970 of 2019 6 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF NOTICE ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2012-13. EXHIBIT P2 COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXHIBIT P3 COPY OF NOTICE ISSUED BY THE 1ST RESPONDENT. EXHIBIT P4 COPY OF ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2012-13. EXHIBIT P5 COPY OF DISCHARGE SUMMARY OF THE PETITIONER ISSUED BY THE MADRAS MEDICAL MISSION HOSPITAL, CHENNAI.