Popular Motor Corporation vs. The Asst. Commissioner - Kerala High Court, 04 March 2021

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.M.BADAR THURSDAY, THE 04TH DAY OF MARCH 2021 / 13TH PHALGUNA, 1942 WP(C).No.4948 OF 2021(P) PETITIONER/S: M/S.POPULAR MOTOR CORPORATION GEETHANJALI STOP, NH BYE PASS, VYTTILA, (NOW AT NEDUMBASSERY AT ALUVA-683 585), REPRESENTED BY ITS AUTHORISED SIGNATORY, K.K.KRISHNAKUMAR BY ADVS. SMT.S.K.DEVI SRI.M.RAJ MOHAN SRI.SHANMUGHAM D. JAYAN RESPONDENT/S: 1 THE ASST. COMMISSIONER KERALA STATE GOODS AND SERVICES TAX DEPARTMENT, SPECIAL CIRCLE III, ERNAKULAM-682 015 2 THE INTELLIGENCE INSPECTOR, SQUAD NO.VII,DEPT OF COMMERCIAL TAXES, ( NOW STATE GOODS AND SERVICES TAX DEPARTMENT, KERALA), KOLLAM AT KOTTARAKKARA-691 506 3 STATE OF KERALA, REPRESENTED BY ITS FINANCE SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695 001 SMT,THUSHARA JAMES, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.4948 OF 2021 2 JUDGMENT Dated this the 4th day of March 2021 The petitioner in this writ petition prays for quashing Ext.P1

assessment order.

Heard both sides.

Learned counsel appearing for the petitioner submits that the assessment at Ext.P1 is passed in utter violation of principles of natural justice. Learned counsel drew my attention to the order at Ext.P1 and argued that the amount of Rs.75,00,000/- (Rupees seventy five lakhs only) has been added on the ground that suppressed turnover is detected as defect No.

10.

My attention is drawn to the revised notice under Section 25(1) of the Kerala Value Added Tax Act at Ext.P3 to point out the alleged defect No.

With this, it is argued that the petitioner has already approached this Court by filing W.P.(C). No.17912 of 2020 wherein all proceedings concerning the penalty imposed in respect of the alleged suppressed turnout are stayed by this Court. Learned counsel for the petitioner further submits that subsequently, by Ext.P4 order, the stay was continued and the stay order was handed over to the said authority. In this view of the matter, according to the learned counsel for the petitioner, the WP(C).No.4948 OF 2021 3 Assessing Officer ought not to have added the alleged suppressed turnout detected as per defect No.10 as this Court has stayed the proceedings pertaining to that aspect in the pending writ petition.

Learned Government Pleader opposed the petition by contending that the petitioner has failed to produce the order at Ext.P2 passed by this Court in W.P.(C). No.17912 of 2020 till despatch of the order and therefore the petitioner cannot be heard to say that the impugned order suffers from violation of principles of natural justice.

I have considered the submissions so advanced and perused the materials placed before me.

The defect No.10 was pointed out by the Assessing Officer as per the revised notice under Section 25(1) of the KVAT Act (Ext.P3). However, at the same time, it is seen that this Court in W.P.(C). No.17912 of 2020 had issued notice before admission and granted stay in respect of the proceedings pertaining to the alleged defect No.10 pointed out in the revised notice under Section 25(1) of the KVAT Act which is placed on record at Ext.P3. In the light of this fact, it seems that the impugned order at Ext.P1 has been passed oblivious of the fact that this Court has passed impugned order in W.P.(C). No.17912 of 2020. In this WP(C).No.4948 OF 2021 4 view of the matter, the impugned assessment order needs to be quashed and set aside and the matter needs to be remitted to the 1st respondent for fresh assessment. Hence the following order:-

The writ petition is allowed. The impugned order at Ext.P1 is quashed and set aside and the matter of assessment is remitted to the concerned officer for deciding the same afresh after hearing the petitioner and after considering the effect of the orders passed by this Court in W.P.(C). No.17912 of 2020. The petitioner to appear before the officer entrusted with the assessment on 08.03.2021 at 11.30 am and thereafter to abide by the directions of the said officer. The Assessing Officer to determine the matter of assessment within a period of six weeks from the date of communication of this judgment to him by the petitioner. The petitioner to cooperate with the Assessing Officer in expeditious assessment. A.M.BADAR ajt JUDGE

WP(C).No.4948 OF 2021 5 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE ORDER NO.32070408164/15-16 DATED 01.01.2021 EXHIBIT P2OF THE ORDER IN WPC NO.17912/2020 (L) DATED 26.8.2020 EXHIBIT P3OF THE NOTICE NO.32070408164/15- 16 DATED 19.10.2020 EXHIBIT P4OF THE ORDER IN WPC NO.17912/2020(L) DATED 22.01.2021