M/S.Saraf Electric Company PVT.LTD. vs. The State Tax Officer,State GST Dpartment - Kerala High Court, 08 April 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI MONDAY, THE 08TH DAY OF APRIL 2019 / 18TH CHAITHRA, 1941 WP(C).No. 10916 of 2019 PETITIONER/S: M/S.SARAF ELECTRIC COMPANY PVT.LTD., M.G. ROAD, ERNAKULAM, REPRESENTED BY AVINASH V. SARAF, MANAGING DIRECTOR. BY ADVS. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON RESPONDENT/S: 1 THE STATE TAX OFFICER,STATE GST DPARTMENT, CHALAKUDY-680307, 2 THE INSPECTING ASST. COMMISSIONER, STATE GST DEPARTMENT, KAKKANADU-682030. OTHER PRESENT: SR. G.P. SRI.C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P.(C) No.10916/2019 -2- J U D G M E N T Heard Sri Harisankar V. Menon for the petitioner and Sri C.K. Govindan, the learned Senior Government Pleader for the respondents.

The petitioner a trader in electrical items files the instant writ petition challenging Exts.P9 and P9(a) assessment orders for the years 2011-12 and 2012-13. The learned Counsel for the petitioner does not dispute that the petitioner has statutory remedy of appeal under Section 55 of the KVAT Act, but contends that the impugned assessment orders are in utter disregard of the principles of natural justice, in the sense the assessing officer/first respondent relies on materials gathered behind the back of the petitioner and that the petitioner is not given opportunity to cross- examine the person whose statement etc, is relied on by the first respondent while making the assessment order. Hence, the petitioner prays for setting aside Exts.P9 and P9(a) assessment orders.

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According to the learned Senior Government Pleader, these are juri ictional facts and the appellate authority should be allowed to examine all juri ictional facts and decide on the legality of Exts.P9 and P9(a) assessment orders and judicial review by overlooking the remedy of appeal is unsustainable.

After perusing the relevant portion in the assessment order, this Court is of the view that these grounds can be urged before the appellate authority as well and this Court has no reason to doubt that the appellate authority, certainly examines these objections and records findings.

Having regard to above view, the writ petition is disposed of by this order: a) Exts.P9 and P9(a) assessment orders are suspended for six weeks from today. b) The petitioner files appeal and also an application to stay Exts.P9 and P9(a) assessment orders within two weeks from today. c) The appellate authority considers and passes orders on the stay petitions filed by the petitioner as noted above

W.P.(C) No.10916/2019 -4- before the expiry of six weeks' time granted by this Court. d)

The appeal if otherwise in order is disposed of within ten weeks from today. S.V.BHATTI JUDGE jjj APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 COPY OF NOTICE ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2011-12 DATED 20.01.2018. EXHIBIT P2 COPY OF NOTICE ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2012-13 DATED 20.01.2018. EXHIBIT P3 COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 06.03.2018. EXHIBIT P4 COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 07.03.2018. EXHIBIT P4 A COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 07.03.2018. EXHIBIT P5 COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 05.05.2018. W.P.(C) No.10916/2019 -5- EXHIBIT P6 COPY OF NOTICE ISSUED BY THE 1ST RESPONDENT DATED 27.04.2018. EXHIBIT P6 A COPY OF NOTICE ISSUED BY THE 1ST RESPONDENT DATED 16-5-2018. EXHIBIT P6 B COPY OF NOTICE ISSUED BY THE 1ST RESPONDENT DATED 19-06-2018. EXHIBIT P6 C COPY OF NOTICE ISSUED BY THE 1ST RESPONDENT DATED 09-07-2018 EXHIBIT P6 D COPY OF NOTICE ISSUED BY THE 1ST RESPONDENT DATED 27-07-2018. EXHIBIT P6 E COPY OF NOTICE ISSUED BY THE 1ST RESPONDENT DATED 03-08-2018. EXHIBIT P7 COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 28.07.2018. EXHIBIT P8 COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 05-09-2018. EXHIBIT P9 COPY OF ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2011-12 DATED 21-02-2019. EXHIBIT P9 A COPY OF ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2012-13.DATED 21.02.2019.