Nipun Gupta vs. State Of Kerala - Kerala High Court, 21 March 2018

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR WEDNESDAY, THE 21ST DAY OF MARCH 2018 / 30TH PHALGUNA, 1939 WP(C).No. 5504 of 2018 ---------------- PETITIONER(S) ------------ NIPUN GUPTA, R/O. 176-D, ABU LANE, MEERUT CANT, UTTARPRADESH. BY ADVS.DR.K.P.PRADEEP SRI.SANAND RAMAKRISHNAN SMT.NEENA ARIMBOOR SRI.T.T.BIJU SRI.K.P.KESAVAN NAIR SMT.T.THASMI. RESPONDENT(S): -------------- 1. STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY TO TAXES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. STATE TAX OFFICER-2ND CIRCLE, DEPARTMENT OF KERALA STATE GOODS AND SERVICE TAX, BAZAR ROAD, MATTANCHERY, ERNAKULAM-682 002. 3. COMMISSIONER OF KERALA STATE GST, DEPARTMENT OF KERALA STATE GST, TAX TOWER, KARAMANA, THIRUVANANTHAPURAM-695 002. BY SR. GOVT. PLEADER SRI.V.K. SHAMSUDHEEN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. 28/03/2018. WP(C).No. 5504 of 2018 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 COPY OF THE REGISTRATION DETAILS OF THE PETITIONER UNDER KERALA VALUE ADDED TAX ACT, 2003. EXT.P2 COPY OF THE ANNUAL RETURN FOR THE YEAR 2013-14 FILED BY THE PETITIONER. EXT.P2A COPY OF THE ANNUAL RETURN FOR THE YEAR 2014-15 FILED BY THE PETITIONER. EXT.P2B COPY OF THE ANNUAL RETURN FOR THE YEAR 2015-16 FILED BY THE PETITIONER. EXT.P3 COPY OF THE REGISTRATION CERTIFICATE DATED 26/09/2017 ISSUED UNDER GST WITH GST NO.32AIQPG4975NISM ISSUED BY THE 2ND RESPONDENT. EXT.P4 COPY OF THE ASSESSMENT ORDER NO.32150648845/13-14 DATED 29/11/2017 UNDER KVAT ACT, 2003 ISSUED BY THE 2ND RESPONDENT. EXT.P4A COPY OF THE ASSESSMENT ORDER NO.32150648845/14-15 DATED 30/11/2017 UNDER KVAT ACT, 2003 ISSUED BY THE 2ND RESPONDENT. EXT.P4B COPY OF THE ASSESSMENT ORDER NO.32150648845/15-16 DATED 30/11/2017 UNDER KVAT ACT, 2003 ISSUED BY THE 2ND RESPONDENT. EXT.P5 COPY OF THE ASSESSMENT ORDER NO.32150648845/13-14/CST DATED 29/11/2017 UNDER CST ACT, 1956 ISSUED BY THE 2ND RESPONDENT. EXT.P5A COPY OF THE ASSESSMENT ORDER NO.32150648845/14-15/CST DATED 30/11/2017 UNDER CST ACT, 1956 ISSUED BY THE 2ND RESPONDENT. EXT.P5B COPY OF THE ASSESSMENT ORDER NO.32150648845/15-16/CST DATED 30/11/2017 UNDER CST ACT, 1956 ISSUED BY THE 2ND RESPONDENT. EXT.P6 COPY OF THE LETTER NO.32150648845 DATED 16/12/2017 ISSUED BY THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE rs. 28/03/2018. P.B.SURESH KUMAR, J. = = = = = = = = = = = = = W.P.(C).No.5504 of 2018 = = = = = = = = = = = = = Dated this the 21st day of March, 2018

J U D G M E N T Petitioner was a registered dealer under the Kerala Value Added Tax Act as also the Central Sales Tax Act. Ext.P4 series and Ext.P5 series are the assessment orders of the petitioner under the said statutes for the periods 2013-'14, 2014-'15 and 2015-'

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The case of the petitioner is that the said orders have been passed without notice to the petitioner. The petitioner, therefore, challenges Ext.P4 series and Ext.P5 series orders on the ground that the same are vitiated for non- compliance of the principles of natural justice.

Heard the learned counsel for the petitioner as also the learned Government Pleader.

It is beyond dispute that notices have been issued by the assessing authority to the petitioner by registered post before issuing the impugned orders and the said notices were returned by the postal authorities with the endorsement 'intimation issued - unclaimed'. The learned Government Pleader submits, relying on Section 88 of the Kerala Value Added Tax Act, that since notices were issued to the petitioner by registered post, the petitioner cannot be heard to contend that impugned orders are vitiated for non-compliance of the principles of natural justice.

True, in the light of the provisions contained in Section 88 the Kerala Value Added Tax Act, if a notice is sent by registered post, there is a presumption that the same has been duly served. The assessee in the instant case is a concern called M/s.Springfit Marketing Inc. The specific case of the petitioner that they have shifted their office from the registered address which is at Mattancherry to another place at South Chittoor with intimation to the assessing authority. Ext.P3 certificate produced by the petitioner indicates that the said case of the petitioner is correct. If that be so, the case of the petitioner that they were not aware of the assessment proceedings has to be accepted, for, it is common knowledge that intimation concerning postal articles is given by the postal authorities when the postal articles cannot be served on the addressee. True, in a case of this nature, the assessing authority cannot be found fault with for having completed the assessments after having sent notice to the assessee by registered post. At the same time, in so far as it is found that the petitioner was not aware of the assessment proceedings, I am of the view that interest of justice demands that the petitioner should be given an opportunity to participate in the assessment proceedings. In the said view of the matter, Ext.P4 series and Ext.P5 series assessment orders are set aside and the assessing authority is directed to pass fresh orders after affording the petitioner an opportunity of hearing. The petitioner shall appear before the assessing authority for hearing on 10.04.2018. The objections, if any, against the proposals shall be filed on or before the said date. P.B.SURESH KUMAR, JUDGE. Kvs/- ////