Global Tyres vs. Deputy Commissioner - Kerala High Court, 08 November 2021

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS MONDAY, THE 8TH DAY OF NOVEMBER 2021 / 17TH KARTHIKA, 1943 WP(C) NO. 24435 OF 2021 PETITIONER: GLOBAL TYRES 32/2607, N.H.ROAD, PALARIVATTOM, KOCHI-682 025. (REPRESENTED BY SRI. PHILIP GEORGE, PROPRIETOR). BY ADVS. K.N.SREEKUMARAN P.J.ANILKUMAR (A-1768) N.SANTHOSHKUMAR RESPONDENT: DEPUTY COMMISSIONER SPECIAL CIRCLE-1, STATE GOODS AND SERVICES TAX DEPARTMENT, THEVARA, ERNAKULAM, KOCHI-682 015. DR.THUSHARA JAMES-SR GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C)No.24435 of 2021 2 BECHU KURIAN THOMAS, J. ---------------------------------------- WP(C) No. 24435 of 2021 ------------------------------------------ Dated this the 8th day of November, 2021

JUDGMENT Petitioner challenges Ext.P3 order of assessment dated 28.09.2021 under Section 25 of the Kerala Value Added Tax Act, 2003. 2. The lone point raised for consideration by Adv.K.N.Sreekumaran the learned Counsel for the petitioner is that pursuant to Ext.P1 notice dated 24.02.2020, petitioner had sought for adjournment by filing a request on 16.03.2021 which was duly acknowledged by the respondent on 16.03.2021 itself. However, when the assessment order was passed, petitioner was not granted an opportunity of hearing and the Assessing Officer mentioned in the order that petitioner had failed to file a reply, or even a request for adjournment. According to the learned Counsel for the respondent, request for adjournment filed by the petitioner was received, as evident from the acknowledgment and the same was completely omitted from being reckoned by issuing an order of assessment thereby rendering the order impugned as one passed without application of mind and in violation of principles of natural justice

I have also heard Dr. Thushara James, the learned Senior Government Pleader.

Having considered the contentions raised, I am of the view that the request for adjournment filed by the petitioner is seen duly acknowledged by the respondent on 16.03.2021 itself. However, when the order was passed, there was a specific observation that petitioner had failed to file even an adjournment application. The observation is as follows:- 'the pre-assessment notice was duly served on the assessee on 29.02.2020 to which neither reply nor adjournment was filed by the assessee till date. That being so, it is pursuing that assessee has no objection, to the proposal in the light of which the undersigned is constrained to complete assessment based on available record on merits'.

Obviously, the aforesaid observation in the impugned order is an evidence of clear non-application of mind as the petitioner had, on 16.03.2021 itself filed an application for adjournment. Whether an adjournment was granted or not, is also not evident from the records. In view of the above, I am of the opinion that Ext.P3 assessment order is liable to be set aside.

While setting aside Ext.P3 order of assessment, I direct the petitioner to file its objection to Ext.P1 notice for assessment on or before 30.11.2021, and if such an objection is filed, the assessing Officer shall hear the petitioner on 06.12.2021 and pass appropriate orders thereon, as expeditiously as possible. The writ petition is allowed as above. BECHU KURIAN THOMAS JUDGE AJ/08.11.2021 APPENDIX OF WP(C) 24435/2021 PETITIONER EXHIBITS Exhibit P1OF THE SHOW CAUSE NOTICE NO.32071313474/2013-14 DATED 24.2.2020 ISSUED BY THE RESPONDENT. Exhibit P2OF THE ADJOURNMENT PETITION DATED 16.3.2020 WITH ACKNOWLEDGMENT OF THE RESPONDENT ON 16.3.2020. Exhibit P3OF THE ASSESSMENT ORDER NO.32071313474/2013-14 DATED 28.9.2021 ISSUED BY THE RESPONDENT.