M/S. Wipro Ge Healthcare (P) LTD vs. The Assistant Commissioner - Kerala High Court, 14 February 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 14TH DAY OF FEBRUARY 2018 / 25TH MAGHA, 1939 W.P(C)No.2886 of 2018 --------------------- PETITIONER ---------- M/S. WIPRO GE HEALTHCARE (P) LTD, BRANCH AT 5TH FLOOR, ARYA BHANGI PINNACLE, ELAMKULAM, S.A ROAD, KOCHI.682020, REPRESENTED BY ITS AUTHORIZED SIGNATORY IGNATIUS M.DAVID. BY ADVS.A.KUMAR P.J.ANILKUMAR G.MINI(1748) P.S.SREE PRASAD RESPONDENTS ----------- 1. THE ASSISTANT COMMISSIONER, SPECIAL CIRCLE-II, GST DEPARTMENT, ERNAKULAM.682016. 2. INTELLIGENCE OFFICER, RAPID ACTION-1, OFFICE OF THE DEPUTY COMMISSIONER(INT), DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM.682016 3. INTELLIGENCE INSPECTOR, SQUAD V, ERNAKULAM.682016. 4. INTELLIGENCE INSPECTOR, SQUAD NO.VII, ERNAKULAM.682016. 5. THE DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, ERNAKULAM.682016 BY SENIOR GOVERNMENT PLEADER : SRI.V.K.SHAMSUDEEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 2886 of 2018 (W) APPENDIX PETITIONER'S EXHIBITS --------------------- EXHIBIT P1 TRUE COPY OF THE PENALTY ORDER DATED 7.12.2016. EXHIBIT P2 TRUE COPY OF THE PENALTY ORDER DATED 14.11.2016. EXHIBIT P3 TRUE COPY OF THE PENALTY ORDER DATED 20.10.2017 EXHIBIT P4 RUE COPY OF THE PENALTY ORDER DATED 29.03.2017, EXHIBIT P5 TRUE COPY OF THE MEMORANDUM OF APPEAL. EXHIBIT P6 TRUE COPY OF NOTICE DATED 20.11.2017. EXHIBIT P7 TRUE COPY OF THE HEARING NOTICE FOR HEARING ON 25.01.2018 ISSUED BY THE 1ST RESPONDENT. RESPONDENTS' EXHIBITS : NIL --------------------- //TRUE COPY// P.A. TO JUDGE bpr P.B. SURESH KUMAR, J. ------------------------------------------------- W.P.(C) No.2886 of 2018 ------------------------------------------------ Dated this the 14th day of February, 2018

JUDGMENT Petitioner was a registered dealer under the Kerala Value Added Tax Act (the Act). Exts.P1 to P4 are orders imposing penalty on the petitioner under Section 47(6) of the Act. Exts.P1 to P4 orders are challenged directly by the petitioner in this proceedings 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.

The learned Government Pleader, on instructions, submitted that the notices issued to the petitioner as referred to in Exts.P1, P2 and P4 orders were returned with the endorsement ‘addressee left’. It is also -2- pointed out by the learned Government Pleader that the said notices have been issued to the petitioner in their address shown in the documents made available by them at the time of detention of the goods referred to therein.

As regards Ext.P3 order, it is asserted by the learned Government Pleader that the same was issued after considering the objections raised by the petitioner and after affording the petitioner an opportunity of hearing. In the light of the submission made by the learned Government Pleader, the case of the petitioner that Exts.P1, P2 and P4 orders are vitiated for non-compliance of the principles of natural justice has to be accepted.

The learned counsel for the petitioner concedes that Ext.P3 order is one issued after referring to the objections raised by the petitioner. It was, however, pointed out by the learned counsel that the said order was also challenged before this Court since similar orders namely, Exts.P1, P2 and P4 are challenged in the proceedings. It was also pointed out by the learned -3- counsel that by way of abundant caution, the petitioner preferred Ext.P5 appeal challenging Ext.P3 order before the fifth respondent. It was further pointed out by the learned counsel that the entire amount covered by Ext.P3 order has been realised from the security furnished by the petitioner at the time of release of the goods referred to therein.

Having regard to the facts and circumstances of the case, the writ petition is disposed of thus: (i) Exts.P1, P2 and P4 orders are quashed. The competent authority, namely, respondents 2 and 3 shall pass fresh orders pursuant to the notices referred to in Exts.P1, P2 and P4 orders, within one month from the date of receipt of a copy of this judgment. The petitioner shall appear for hearing on 26.02.2018. (ii) The fifth respondent shall dispose of Ext.P5 appeal preferred by the petitioner challenging Ext.P3 order within three months from the date of receipt of a copy of -4- this judgment. (iii) Further proceedings initiated against the petitioner under Section 25(1) of the Act on the strength of Exts.P1, P2 and P4 shall be deferred until direction No.(i) is complied with. P.B. SURESH KUMAR JUDGE bpr //// P.A. TO JUDGE