Platinum Superstructure PVT. LTD. vs. The Assistant Commissioner (Works Contract) - Kerala High Court, 02 April 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 02ND DAY OF APRIL 2019 / 12TH CHAITHRA, 1941 WP(C).No. 10184 of 2019 PETITIONER/S: PLATINUM SUPERSTRUCTURE PVT. LTD., D-36/2176, PLATINUM HOUSE, KALOOR KADAVANTHRA ROAD, KOCHI, PIN- 682 020, REPRESENTED BY ITS MANAGING DIRECTOR, SRI.B.RAJAGOPAL. BY ADV. SRI.R.MURALIDHARAN (AROOR) RESPONDENT/S: 1 THE ASSISTANT COMMISSIONER (WORKS CONTRACT), O/O THE DEPUTY COMMISSIONER, STATE GOODS AND SERVICES TAX DEPARTMENT, 9TH FLOOR, REVENUE TOWER, ERNAKULAM, COCHIN - 11. 2 THE DEPUTY COMMISSIONER, STATE GOODS AND SERVICES TAX DEPARTMENT, ERNAKULAM AT TAX COMPLEX, PERUMANOOR, ERNAKULAM, PIN - 682 015. 3 THE COMMISSIONER OF STATE TAXES, TAX TOWER, KILLIPALAM, KARAMANA P.O., THIRUVANANTHAPURAM - 695 002. OTHER PRESENT: SR. GP. SRI. C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 10184/2019 -2-

J U D G M E N T Heard Sri R.Muraleedharan, the learned counsel for the petitioner and Sri C.P. Govindan, the learned Senior Government Pleader.

The petitioner challenges Exts.P6 and P7 assessment orders made for the Assessment Years 2011-12 and 2012-13 as incomplete, the orders disregard the directions issued by this Court in the common judgment dated 11.01.2019 passed in W.P. (C) No.11335 of 2018 and also that the fair and reasonable opportunity to grant ten days' time from 07.03.2019 was arbitrarily rejected. Therefore the assessment orders Exts.P6 and P7 are liable to be set aside and the matter remitted to the first respondent for consideration afresh.

The learned counsel for the petitioner submits that either the delay or the non co-operation in participating in the -3- opportunity given by the first respondent is due to circumstances beyond the control of the management of the petitioner Company; that the accountant of petitioner Company did not discharge the duty or functions which he is expected to discharge in the normal course of his employment. The amount now determined by the impugned assessment orders is excessively high and that the petitioner if given, an opportunity to file statements including reconciliation statement the liability if any under the KVAT Act could be decided in accordance with law. He reiterates that the opportunity, if is given by this order the petitioner is prepared to adhere to the terms and conditions this Court may impose even for remitting the case to the first respondent for disposal afresh and the petitioner would co-operate with the assessing officer.

The learned Government Pleader disputes each one of the contentions relied on by the petitioner, contends that -4- reasonable opportunity is not denied to petitioner before making Exts.P6 and P7. To explain the stand of the first respondent, he draws the attention of the Court to the earliest notice issued on 14.09.2018 culminating in subsequent e-mail notice dated 07.02.2019; 22.02.2019 and notice of hearing dated 28.02.2019 informing the date of hearing as 07.03.2019. The representative of petitioner Company appeared only on 07.03.2019, requested ten days' more time to file the objections etc to the notice dated 14.09.2018. According to Government Pleader the first respondent is not under obligation to consider the latest request but not withstanding, the first respondent granted five days from 07.03.2019. But on 12.03.2019 none appeared for the petitioner. Therefore, the orders do not warrant interference of this Court on the alleged violation of fair opportunity under Article 226 of the Constitution of India.

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For appreciating the reasonableness of opportunity; this Court takes note of the details referred to in the notice (Ext.P1) till the assessment orders (Exts.P6 and P7) are made by the first respondent. It cannot be said that instant case is a case of complete denial of opportunity to the petitioner, but a case warrants testing the refusal for granting ten days' time made on 07.03.2019, whether constitutes denial of reasonable opportunity or not. These are matters normally in the exclusive juri iction or discretion of the first respondent. This Court interferes, if arbitrariness is pointed out in the exercise of such discretion by the authority vested with such discretion.

The lone circumstance pointed out by the learned counsel for the petitioner to appeal to this Court is that the assessment order is made to meet the deadline dated 31.03.2019. The period of assessment is 2012-13 and the petitioner pleads a few practical problems in filing the -6- statements before R1. The 10 days' time requested if is granted, it would have appeared that justice not only is done but seem to have been done in completing long pending assessments. Therefore, it appears to this Court that reasonable opportunity as directed by this Court in W.P.(C) No.11335 of 2018 is not given to the petitioner. On the said ground the orders (Exts.P6 and P7) are set aside. The matter is remitted to the first respondent for disposal in accordance with law, subject to the condition that the petitioner deposits Rs.15 lakh on or before 17.04.2019, appears before the first respondent with full details of its reply and proof of payment as directed by this Court on 22.04.2019 takes further dates of hearing from R1. The petitioner not only appears on the dates intimated by the first respondent but files objections on or before 22.04.2019. The enquiry be completed on or before 10.05.2019. The condition of depositing amount, it is made clear, is without prejudice to all the objections and -7- contentions the petitioner has in this behalf before the first respondent. S.V.BHATTI JUDGE APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE NOTICE ISSUED UNDER SEC. 25(1) OF THE KVAT ACT, BY THE 1ST RESPONDENT DATED 08/08/2018 FOR THE YEAR 2011-2012. EXHIBIT P2OF THE NOTICE ISSUED UNDER SEC. 25(1) OF THE KVAT ACT, BY THE 1ST RESPONDENT DATED 14/09/2018 FOR THE YEAR 2012-2013. EXHIBIT P3OF THE NOTICE ISSUED BY THE 1ST RESPONDENT DATED 28/02/2019. EXHIBIT P4OF THE APPLICATION FOR ADJOURNMENT FILED BY THE PETITIONER DATED 07/03/2019. EXHIBIT P5OF THE ADJOURNMENT NOTICE ISSUED BY THE 1ST RESPONDENT DATED 07/03/2019. EXHIBIT P6OF THE ASSESSMENT ORDER PASSED BY THE 2011-2012. EXHIBIT P7OF THE ASSESSMENT ORDER PASSED BY THE 2012-2013.