Focuz Corporation Private Limited vs. The Deputy Commissioner - Kerala High Court, 21 October 2022

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. FRIDAY, THE 21ST DAY OF OCTOBER 2022 / 29TH ASWINA, 1944 WP(C) NO. 32235 OF 2022 PETITIONER/S: FOCUZ CORPORATION PRIVATE LIMITED 41/160, 41/161, ERNAKULAM DISTRICT AUTO PARTS DEALERS ASSOCIATION BUILDING, NH BYPASS, EDAPPALLY, KOCHI, REPRESENTED BY ITS DIRECTOR TONY RAPHAEL., PIN - 682024 BY ADVS. S.K.DEVI SHANMUGHAM D. JAYAN RESPONDENT/S: THE DEPUTY COMMISSIONER, STATE GOODS AND SERVICES TAX DEPARTMENT, SPECIAL CIRCLE I ERNAKULAM., PIN - 682015 ADV. JASMIN M M (GP) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C) NO. 32235 OF 2022 2 JUDGMENT

Petitioner has approached this Court, being aggrieved by Exts.P1 and P2 orders of assessment under the Kerala Value Added Tax Act, 2003, principally on the ground that the petitioner was not afforded an opportunity of hearing before the assessment was completed.

Smt. S.K. Devi, learned counsel appearing for the petitioner also points out that there are other illegalities in respect of the assessment orders. It is pointed out that the assessment orders were issued by an officer, who was holding the post of the respondent, after he was transferred from that post. It is submitted that following such transfer, the officer had no juri iction or authority to complete the assessment against the petitioner.

Learned Government Pleader, on instructions, submits that the contentions taken by the petitioner are not correct. It is submitted that a notice was issued to the petitioner and the petitioner failed co-operate with the assessment, as a result of which, the assessment had to be completed against the petitioner ex parte. It is submitted that the petitioner has an effective alternative remedy

WP(C) NO. 32235 OF 2022 3 against Exts.P1 and P2 and there is no reason for this Court to interfere with Exts.P1 and P2 assessment orders under Article 226 of the Constitution of India.

Having heard the learned counsel appearing for the petitioner and the learned Government Pleader appearing for the respondent, I am of the opinion that this writ petition can be allowed and the matter can be remanded to the files of the respondent for fresh consideration, after affording the petitioner an opportunity of being heard. Violation of natural justice is an exception to the rule of alternative remedy. It is the specific case of the petitioner that sufficient opportunity was not given to the petitioner to participate in the assessment proceedings. Therefore, Exts.P1 and P2 orders for assessment years 2015-16 and 2016-17 are set aside and the assessments for the said years (2015-16 and 2016-17) are remanded for fresh consideration of the respondent, who shall complete the assessment afresh, after affording the petitioner, an opportunity of being heard. The petitioner shall appear before the respondent at 11.00 am on 04.11.2022. The respondent shall, thereafter complete the proceedings as

WP(C) NO. 32235 OF 2022 4 directed above, within a period of one month from 04.11.2022. The writ petition is disposed of as above. GOPINATH P. JUDGE ajt

WP(C) NO. 32235 OF 2022 5 APPENDIX OF WP(C) 32235/2022 PETITIONER EXHIBITS Exhibit P-1OF ORDER NO. 32070212324/2015-16 DATED 22/4/2022 OF THE RESPONDENT. Exhibit P-2OF ORDER NO. 32070212324/2016-17 DATED 22/4/2022 OF THE RESPONDENT. Exhibit P-3OF THE REPLY DATED 16.2.2022 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT. Exhibit P-4OF THE NOTICE FOR THE YEAR 2014-15 ISSUED BY THE RESPONDENT. Exhibit P-4(a).OF THE NOTICE FOR THE YEAR 2015-16 ISSUED BY THE RESPONDENT. Exhibit P-4(b)OF THE NOTICE FOR THE YEAR 2016-17 ISSUED BY THE RESPONDENT. Exhibit P-5OF ORDER NO. 32070212324/2014-15 DATED 31/3/2022 OF THE RESPONDENT.