Wintime Import And Exports vs. The State Tax Officer - Kerala High Court, 07 November 2019

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR THURSDAY, THE 07TH DAY OF NOVEMBER 2019 / 16TH KARTHIKA, 1941 WP(C).No.16486 OF 2019(I) PETITIONER/S: WINTIME IMPORTS AND EXPORTS PALAMATTAM HOUSE, PIRALIMATTAM KARA, KADALIKADU-686 670,ERNAKULAM DISTRICT, REPRESENTED BY MS.AJI METTO- MANAGING PARTER. BY ADVS. SRI.JOSEPH JERARD SAMSON RODRIGUES SRI.ROVIN RODRIGUES RESPONDENT/S: 1 THE STATE TAX OFFICER FIRST CIRCLE, STATE GOODS AND SERVICES TAX DEPARTMENT, MATTANCHERRY, KOCHI-682 002. ERNAKULAM DISTRICT 2 DEPUTY TAHSILDAR, MUVATTUPUZHA TALUK, MINI CIVIL STATION, PATTIMATTOM- MUVATTUPUZHA ROAD, PIN, 686 673, ERNAKULAM DISTRICT R1-2 BY GOVERNMENT PLEADER SMT.THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.11.2019, ALONG WITH WP(C).16491/2019(J), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C) Nos.16486 & 16491 of 2019 2 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR THURSDAY, THE 07TH DAY OF NOVEMBER 2019 / 16TH KARTHIKA, 1941 WP(C).No.16491 OF 2019(J) PETITIONER/S: WINTIME IMPORT AND EXPORTS PALAMATTAM HOUSE, PIRALIMATTAM KARA, KADALIKADU - 686 670. ERNAKULAM DISTRICT, REPRESENTED BY MS. AJI METTO - MANAGING PARTNER. BY ADVS. SRI.JOSEPH JERARD SAMSON RODRIGUES SRI.ROVIN RODRIGUES RESPONDENT/S: 1 THE STATE TAX OFFICER FIRST CIRCLE, STATE GOOD AND SERVICES TAX DEPARTMENT, MATTANCHERRY, KOCHI - 682 002, ERNAKULAM DISTRICT. 2 DEPUTY TAHSILDAR MUVATTUPUZHA TALUK, MINI CIVIL STATION, PATTIMATTOM - MUVATTUPUZHA ROAD, PIN - 686 673, ERNAKULAM DISTRICT. R1-2 BY GOVERNMENT PLEADER SMT.THUSHARA JAMES THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.11.2019, ALONG WITH WP(C).16486/2019(I), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C) Nos.16486 & 16491 of 2019 3

JUDGMENT In both these writ petitions, the petitioner impugns Ext.P1 assessment orders and the consequential demand notices and revenue recovery notices issued to him under the Kerala Value Added Tax, 2003. The sole ground on which the assessment orders are impugned in these writ petitions is that, before passing the said orders the petitioner was not granted an opportunity of hearing and was not served with any notice proposing the assessment. It is therefore contended that the assessment orders are vitiated through a blatant violation of the rules of natural justice.

A counter affidavit has been filed on behalf of the 1st respondent, wherein reference is made to the copies of the notices issued to the petitioner and the postal acknowledgement received in relation thereto. While in W.P(C) No.16486 of 2019 it is seen that the notice issued to the petitioner under Section 25(1) was received by a representative of the petitioner, which fact is evidenced by the seal affixed to the said notice, in W.P(C) No.16491 of 2019, the notices served on the petitioner at the last known business address were returned unserved, which led the respondents to affix the notices for hearing in the said premises. Although it is contended by the learned counsel for the petitioner that the notices were not received because they had stopped business at the said address, there is nothing to indicate that the petitioner had intimated the department of any change of business address so as to effect a service of notice under the Act at the changed address.

W.P(C) Nos.16486 & 16491 of 2019 4

Under the circumstances, I find that the plea of non-service of notice raised by the petitioner cannot be legally sustained. Inasmuch as the ex parte orders of assessment have been passed on account of the lapses occasioned by the petitioner assessee himself, the respondents cannot be legally faulted for having passed the assessment orders in the absence of any co-operation from the petitioner assessee. I therefore dismiss the writ petitions in their challenge against the impugned assessment orders, and relegate the petitioners to their alternative remedy of filing statutory appeals against the impugned assessment orders before the first appellate authority. Taking note of the submission of the learned counsel for the petitioner that they would require some time to move the appellate authority, I direct that recovery proceedings for recovery of amounts confirmed against the petitioners by the assessment orders impugned in these writ petitions shall be kept in abeyance for a period of four weeks so as to enable the petitioners to move the appellate authority in the meanwhile. The petitioners shall produce copies of the writ petition and a copy of this judgment before the respondents for further action. A.K.JAYASANKARAN NAMBIAR

JUDGE

okb //// P.S. to Judge

W.P(C) Nos.16486 & 16491 of 2019 5 APPENDIX OF WP(C) 16486/2019 PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE ASSESSMENT ORDER NO 32150546447/2015-16 DATED 31.10.2018, ISSUED BY THE FIRST RESPONDENT EXHIBIT P2OF THE NOTICE OF DEMAND DATED 31.10.2018 FOR RS 30,29,762, ISSUED BY THE FIRST RESPONDENT FOR THE YEAR 2015-16 EXHIBIT P3OF THE DEMAND NOTICES ISSUED BY THE SECOND RESPONDENT DATED 16.5.2019 . EXHIBIT P3.(TRANSLATION): TRUE TRANSLATION OF THE DOCUMENT MARKED AS EXHIBIT-P3 RESPONDENT'S/S EXHIBITS: EXHIBIT R1(a)OF THE SAID NOTICE ISSUED BY THE IST RESPONDENT TO THE PETITIONER EXHIBIT R1(b)OF THE NOTICE DATED 09.10.2017 ISSUED BY THE RESPONDENT HEREIN UPON THE PETITIONER. EXHIBIT R1(c)OF THE POSTAL ACKNOWLEDGMENT EXHIBIT R1(d)OF THE NOTICE DATED 04.10.2018 ISSUED BY THE RESPONDENT EXHIBIT R1(e)OF THE ENDORSEMENT MADE BY THE POSTAL DEPARTMENT REGARDING AJI MATHEW EXHIBIT R1(f)OF THE ENDORSEMENT MADE BY THE POSTAL DEPARTMENT REGARDING M.V JOSHI

W.P(C) Nos.16486 & 16491 of 2019 6 APPENDIX OF WP(C) 16491/2019 PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE ASSESSMENT ORDER NO.32150546447/2013-14 DATED 25.01.2019, ISSUED BY THE FIRST RESPONDENT. EXHIBIT P2OF THE NOTICE OF DEMAND DATED 25.01.2019 FOR RS.2,52,083/- ISSUED BY THE FIRST RESPONDENT FOR THE YEAR 2013-2014. EXHIBIT P3OF THE DEMAND NOTICES ISSUED BY THE SECOND RESPONDENT DATED 16.05.2019. EXHIBIT P4 TRUE TRANSLATION OF THE DOCUMENT MARKED AS EXHIBIT P3. RESPONDENT'S/S EXHIBITS: EXHIBIT R1(a)OF THE SAID PRE-ASSESSMENT NOTICE DATED 01.09.2018 ISSUED BY THE RESPONDENT HEREIN UPON THE PETITIONER. EXHIBIT R1(b)OF THE POSTAL ACKNOWLEDGMENT DATED 24.10.2018 SHOWING THAT THE NOTICE HAS BEEN UN CLAIMED BY THE PETITIONER. EXHIBIT R1(c) A COPY OF THE SAID NOTICE AFFIXED AT THE BUSINESS ESTABLISHMENT OF THE PETITIONER DATED 01.12.2018