The Gateway Hotel vs. The State Tax Officer (Luxury Tax) - Kerala High Court, 26 May 2021

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

WEDNE AY, THE 26TH DAY OF MAY 2021 / 5TH JYAISHTA, 1943

WP(C) NO. 8426 OF 2021

PETITIONER:

0 THE GATEWAY HOTEL BEACH ROAD, PT USHA RD, VELLAYIL, KOZHIKODE, KERALA- 673032, REPRESENTED BY ITS MANAGER-FINANCE, MR. VINAY GORAY.

BY ADVS. JOSE JACOB SHRI.JAZIL DEV FERDINANTO

RESPONDENT:

0 THE STATE TAX OFFICER (LUXURY TAX) STATE GOODS AND SERVICES TAX DEPARTMENT, KOZHIKODE- 673032. OTHER PRESENT:

GP DR. THUSHARA JAMES

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.05.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

Dated this the 26th day of May, 2021

This writ petition is filed challenging Exts.P9 to P12 orders issued by the respondent under Section 6 (5) of the Kerala Tax on Luxuries Act, 1976 (hereinafter referred to as the ‘Act’). It is submitted by the learned counsel for the petitioner that the notices, which were issued prior to the issuance of the orders, were received by the petitioner only in the 3rd week of February, 2021 and due to the lock down and the fact that the staff of the petitioner organisation were working from home, the notices could not be duly responded to by them. It is further submitted that the orders have been rendered without hearing the petitioner and that the valid contentions that the petitioner had to raise were not considered..

The learned Senior Government Pleader submits that the assessment for the financial year in question had been completed earlier and that a pre assessment notice for reopening the assessment and to complete the assessment under Section 6 (5) of the ‘Act’, had been issued to the petitioner, which was duly served on 19.02.2021. It is only in view of the fact that no objections had been raised by the petitioner and no request was made either for extension of time or for producing the documents or for a personal hearing that the orders had been passed.

Having heard the learned counsel on either side and having considered the contentions advanced, I am of the opinion that the contention raised by the petitioner that the majority of the staff of the petitioner were working from home and that Exts.P5 to P8 notices escaped the notice of the officers is a possible explanation and that as such, the issue is liable to be reconsidered by the assessing officer. I am of the opinion that since it is admitted that Exts.P9 to P12 orders had been passed without the petitioner having raised any objections or any opportunity having being given to the petitioner for a personal hearing and since the petitioner asserts that materials are available with the petitioner for objecting to the proposal in Exts.P5 to P8 notices, I am of the opinion that the petitioner is entitled to an opportunity to submit their objections and a hearing in the matter.

In the above view of the matter, Exts.P9 to P12 orders are set aside. The matter is remitted to the respondent for a fresh consideration after considering the objections of the petitioner. The petitioner shall submit objections to Exts.P5 to P8 notices within a period of two weeks from the date of receipt of a copy of this judgment. Any material that the petitioner intends to rely upon shall also be placed on record before the respondent along with the objections. The petitioner shall also be given an opportunity of being heard through video conferencing by the respondent before orders are passed. The petitioner shall be heard through video conferencing at any convenient time on 17.06.2021 as intimated to the petitioner by the respondent and an appropriate order shall be passed and after hearing the contentions as well.

This writ petition is ordered accordingly. ANU SIVARAMAN

JUDGE

Bng/26.05.2021 APPENDIX PETITONER’S EXHIBITS

EXHIBIT P1 ORDER NO.32114511437/14-15 ISSUED BY THE RESPONDENT DATED 16.11.2020. EXHIBIT P2 ORDER NO.32114511437/15-16 ISSUED BY THE RESPONDENT DATED 16.11.2020. EXHIBIT P3 ORDER NO.32114511437/16-17 ISSUED BY THE RESPONDENT DATED 16.11.2020. EXHIBIT P4 ORDER NO.32114511437/17-18 ISSUED BY THE RESPONDENT DATED 16.11.2020. EXHIBIT P5 ORDER NO.32114511437/2014-15 ISSUED BY THE RESPONDENT DATED 11.2.2021. EXHIBIT P6 ORDER NO.32114511437/2015-16 ISSUED BY THE RESPONDENT DATED 11.2.2021. EXHIBIT P7 ORDER NO.32114511437/2016-17 ISSUED BY THE RESPONDENT DATED 11.2.2021. EXHIBIT P8 ORDER NO.32114511437/2017-18 ISSUED BY THE RESPONDENT DATED 11.2.2021. EXHIBIT P9 ORDER NO.32114511437/14-15 ISSUED BY THE RESPONDENT DATED 1.3.2021. EXHIBIT P10 ORDER NO.32114511437/15-16 ISSUED BY THE RESPONDENT DATED 1.3.2021. EXHIBIT P11 ORDER NO.32114511437/16-17 ISSUED BY THE RESPONDENT DATED 1.3.2021. EXHIBIT P12 ORDER NO.32114511437/17-18 ISSUED BY THE RESPONDENT DATED 1.3.2021.