Consolidated Construction Consortium LTD vs. The State Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL FRIDAY, THE 26TH DAY OF JUNE 2020 / 5TH ASHADHA, 1942 WP(C).No.12751 OF 2020(T) PETITIONER/S: CONSOLIDATED CONSTRUCTION CONSORTIUM LTD 12/44, WALAYAR DAM P.O., WALAYAR, PALAKKAD, REPRESENTED BY ITS AUTHORISED SIGNATORY, SRI.T.MURUGAN. BY ADV. SRI.N.MURALEEDHARAN NAIR RESPONDENT/S: 1 THE STATE TAX OFFICER WORKS CONTRACT, STATE GOODS AND SERVICES TAX DEPARTMENT (KERALA), PALAKKAD-678001. 2 THE JOINT COMMISSIONER (APPEALS), (FORMERLY DEPUTY COMMISSIONER (APPEALS), STATE GOODS AND SERVICES TAX DEPARTMENT (KERALA), PALAKKAD- 678001. 3 THE ASSISTANT COMMISSIONER OF STATE TAX, STATE GOODS AND SERVICES TAX DEPARTMENT (KERALA), PALAKKAD-678001. OTHER PRESENT: GP DR THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.12751 OF 2020 -2- JUDGMENT Dated this the 26th day of June 2020 Against Exts.P1 to P3 assessment orders for assessment years 2012-13, 2013-14 & 2014-15 under the Kerala Value Added Tax Act (for short, KVAT Act), erstwhile Act, 2003, petitioner has preferred Exts.P4 to P6 appeals. 2. Sri.N.Muraleedharan Nair, learned counsel appearing on behalf of the petitioner, submits that petitioner had sought adjournment of the matter vide applications dated 18.11.2019 Ext.P7 & dated 25.01.2020 Ext.P8. However, petitioner was not appraised of the aforementioned date resulting into dismissal of the appeal in default vide impugned order dated 16.03.2020 Exts.P9 to P11. He submits that as per Section 55(5) of the KVAT Act, appeals cannot be dismissed at par as appellate authority is not denuded to decide appeal on merit in the absence of any representative of appellant. 3. Issue notice before admission. Dr.Thushara WP(C).No.12751 OF 2020 -3- James, learned Government Pleader accepts notice and submits that some time is given to the assessee but did not intentionally appear resulted into appeals dismissed in default so that by the time are restored or taken afresh, would take the benefits of the limitation as per provisions of Section 25(1) of the Act and urges this Court for dismissal of the writ petition. 4. I have heard learned counsel for the parties and appraised the paper books. The facts as referred above not in dispute. Appeals preferred against the assessment orders Exts.P1 to P3 and appeals Exts.P4 to P6 were filed have been dismissed in default vide order dated 16.03.2020 Exts.P9 to P11. Section 55(5) of the Kerala erstwhile Act, 2003 do not specifically envisage any said provisions for appellate authority to dismiss appeal in default but said provisions as contended by the Government Pleader empowers the appellate authority to pass such an order it may deem appropriate. I am afraid the aforementioned argument would not come to the aid of learned Government WP(C).No.12751 OF 2020 -4- Pleader as nothing prevented officer to follow principles of natural justice which are conspicuously absent from the impugned order as it reflects only of affording two opportunities. It is also matter of concern that during the period when the appeals were taken up and dismissed in default there was already a threat of Corona Virus/COVID- 19 pandemic though the lock down only began on 24.03.2020 with a lock down of one day on 22.03.2020. 5. In my view it is a fit case where appeals are required to be heard afresh after affording an opportunity of being heard to the petitioner. Accordingly the impugned orders Exts.P9 to P11 are set aside. Matter is remitted and ordered to be revisited at the level of first appellate authority to hear the appeals afresh in accordance with law, after affording an opportunity of hearing. Parties or their representatives are directed to appear before the first appellate authority on 15.07.2020 at 11 a.m. 6. Sri.N.Muraleedharan Nair informs the Court that during the period when the appeals were pending there WP(C).No.12751 OF 2020 -5- was already interim stay and believing the aforementioned contention to be correct, I order that once the appeals ordered to be restored, the interim orders automatically comes into operation. The writ petition is disposed of accordingly. Sd/- AMIT RAWAL vv JUDGE WP(C).No.12751 OF 2020 -6- APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1