Dileep Jose vs. The District Collector - Kerala High Court, 28 May 2019

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI TUESDAY, THE 28TH DAY OF MAY 2019 / 7TH JYAISHTA, 1941 WP(C).No. 27209 of 2018 PETITIONER/S: DILEEP JOSE AGED 43 YEARS S/O.JOSE CHANDI, PROPRIETOR, M/S.ANNA PROPERTIES, 8TH FLOOR, JOMER SYMPHONY, VYTILLA, ERNAKULAM BY ADVS. SRI.JOBY JACOB PULICKEKUDY SMT.K.BINCYMOL SMT.N.B.FATHIMA SULFATH SRI.ANIL GEORGE SRI.K.S.SUMEESH RESPONDENT/S: 1 THE DISTRICT COLLECTOR COLLECTORATE, KAKKANAD, ERNAKULAM-682 030. 2 THE STATE TAX OFFICER, REVENUE RECOVERY, ERNAKULAM-682 015 3 4 THE ASSISTANT COMMISSIONER OF STATE GOODS AND SERVICES TAX DEPARTMENT, 9TH FLOOR, CHALIKAVATTOM, VYTTILA, KOCHI 682 028 THE ASSISTANT COMMISSIONER OF STATE GOODS& SERVICES TAX DEPARTMENT, 9TH FLOOR, CHALIKAVATTOM, VYTTILA, KOCHI 682028 BY ADV. GOVERNMENT PLEADER GP. SMT. M.M. JASMINE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28.05.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 27209 of 2018 -2-

JUDGMENT Heard Sri.Joby Jacob Pulickekudy, the learned counsel for the petitioner and Smt.M.M.Jasmin, the learned Government Pleader.

The petitioner is a builder in construction activity and a registered dealer under KVAT Act. The 4th respondent issued notice dated 08.05.2018 under Section 25(1) of the Act. On 15.05.2018 the notice is received by the petitioner. The undisputed circumstance is that on 29.05.2018 the matter was taken up and considered by 4th respondent. The case of 4th respondent is that the petitioner in fact was heard on 29.05.2018 and the challenge to assessment order dated 08.06.2018 on the ground that the assessment order is vitiated as violative of principles of natural justice is untenable.

The case of petitioner is that on 01.06.2018, the petitioner filed the objections. The petitioner is to be heard on the objections filed by him and the assessment proceedings cannot be completed by referring to the so called hearing on 29.05.2018. -3- The 4th respondent filed counter affidavit and the counter affidavit is assertive about the happenings on 29.05.2018, but does not deal with affording opportunity to petitioner after written objections against the proposed reliefs were filed on 01.06.2018. The learned counsel for the petitioner points out that the assessment order adverts to objections raised on 01.06.2018, without giving an opportunity, considered these objections behind the back of petitioner hence the order impugned is illegal and unsustainable.

The learned Government Pleader submits that from the record it is evident that on 29.05.2018 the petitioner was given opportunity, but no opportunity is given to petitioner after receiving the objections dated 01.06.2018. I have perused the assessment order and prima facie of the view that the 4th respondent failed to give opportunity of hearing to petitioner by issuing a separate notice of hearing after acknowledging objections dated 01.06.2018. The said omission, vitiates the assessment order dated 08.06.2018 is vitiated and liable to be set aside and accordingly set aside. The matter is -4- remitted to 4th respondent for consideration and disposal in accordance with law. This Court for convenience directs the petitioner to appear before 4th respondent with a copy of this judgment on or before 21.06.2019 and further date is given for considering the objections. In his first appearance before 4th respondent, the petitioner if so advised files additional objections together with records if any on which the petitioner relies on in this behalf. The enquiry is completed and orders are passed expeditiously and preferably within three months from the date of receipt of a copy of this judgment. S.V.BHATTI JUDGE Ac -5- APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1OF NOTICE DATED 08.05.2018 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P2OF THE LETTER DATED 1ST JUNE 2018 ISSUED BY THE 4TH RESPONDENT EXHIBIT P3OF THE LETTER DATED 14.06.2018 ISSUED BY THE 4TH RESPONDDENT EXHIBIT P4OF ORDER NO.32072093109/2011- 12 DATED 08.06.2018 PASSED BY THE 4TH RESPONDENT EXHIBIT P5 THE NOTICE OF DEMAND ISSUED ALONG WITH EXT.P4 DATED 08.06.2018 EXHIBIT P6 TRUE PHOTOCOPY OF DEMAND NOTICE UNDER SECTION 7 OF THE REVENUE RECOVERY ACT DATED 30.07.2018 RESPONDENT'S/S EXHIBITS: NIL