Leo Sebastian vs. Commercial Tax Officer - Kerala High Court, 26 February 2018

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR MONDAY, THE 26TH DAY OF FEBRUARY 2018 / 7TH PHALGUNA, 1939 WP(C).No. 4113 of 2018 PETITIONER(S) LEO SEBASTIAN PROPRIETOR, M/S. DURON ENTERPRISES, CHANGAMPUZHA NAGAR, P.O., COCHIN-682 033. ERNAKULAM DISTRICT. BY ADV.SRI.TOMSON T.EMMANUEL RESPONDENT(S): 1. COMMERCIAL TAX OFFICER GOODS AND SERVICES TAX DEPARTMENT, 1ST CIRCLE, KALAMASSERY AT KAKKANAD, COCHIN-682 030. 2. COMMISSIONER OF COMMERCIAL TAXES PUBLIC OFFICE BUILDING, NEAR MUSEUM, THIRUVANANTHAPURAM-695 033. 3. STATE OF KERALA REPRESENTED BY SECRETARY TO TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 4. INSPECTING ASSISTANT COMMISSIONER COMMERCIAL TAXES, ERNAKULAM, COCHIN-682 030. R BY SR.GOVERNMENT PLEADER, SRI.V.K.SHAMSUDHEEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 4113 of 2018 (L) APPENDIX PETITIONER(S)' EXHIBITS EXHIBIT P1 TRUE COPY OF ANNUAL E-RETURN SUBMITTED FOR THE YEAR 2016-17, BEFORE 1ST RESPONDENT, CLAIMING CONCESSION FOR RS.27,98,973.47 FOR THE INTERSTATE SALES. EXHIBIT P2 TRUE COPY OF STATEMENT OF INTERSTATES SALES FOR 2016-17 MADE AGAINST 'C' FORM AND OBTAINED FROM VARIOUS CUSTOMERS, KEPT READY WITH PETITIONER FOR AVOIDING A CHANCE OF MISPLACING. EXHIBIT P3 TRUE COPY OF EX-PARTY ORDER DATED 27.12.2017 PASSED BY 1ST RESPONDENT FOR 2016-17 WITHOUT SERVING ANY NOTICE TO THE PETITIONER, WHEREIN REJECTED THE CONCESSIONAL CLAIMED AGAINST INTERSTATE SALES. EXHIBIT P4 TRUE COPY OF CIRCULAR NO.28/2012 DATED 29.10.2012 ISSUED BY 2ND RESPONDENT ON THE BASIS OF DIRECTIONS OF THE DIVISION BENCH OF THIS HON'BLE COURT IN WRIT APPEAL NO. 1006 OF 2012. EXHIBIT P5 TRUE COPY OF JUDGMENT DATED 30.06.2017 IN WPC NO. 15651 OF 2017 PASSED BY THIS HON'BLE COURT IN QUASHING AN EX-PARTY ORDER PASSED WITHOUT PROPER HEARING, WHICH IS A SIMILAR SET OF FACT. RESPONDENT'S EXHIBITS : NIL //TRUE COPY// SD/- P.A. TO JUDGE SKS P.B.SURESH KUMAR, J. = = = = = = = = = = = = = W.P.(C).No.4113 of 2018 ---------------------------------------------------- Dated this the 26th day of February, 2018

J U D G M E N T Petitioner was an assessee under the Central Sales Tax Act. The assessment of the petitioner for the year 2016-17 has been completed by the competent authority as per Ext.P3 order. Ext.P3 order is under challenge in the writ petition on the ground mainly that the same was one issued without notice to the petitioner.

Heard the learned counsel for the petitioner as also the learned Government Pleader.

The only point arising for consideration is whether Ext.P3 order is one issued without notice to the petitioner. The learned Government Pleader submits, on instructions, that notice has been issued to the petitioner by hand from the office of the assessing authority and the petitioner has acknowledged the notice by putting his signature on the copy of the notice. The learned Government Pleader has -2- also made available a copy of the notice in which the petitioner has acknowledged receipt of the original.

The learned counsel for the petitioner asserts that no notice whatsoever has been served on the petitioner and the acknowledgment claimed to have been obtained by the assessing authority is not one obtained from the petitioner. The impugned order proceeds on the basis that though the petitioner claimed concessional rate of tax for the interstate sales effected for Rs.27,98,973/-, he has not filed C-forms in support of the said claim. The learned counsel for the petitioner submits that he has all the C-forms and had he been given notice, he would have produced the same.

Section 88 of the Kerala Value Added Tax Act deals with the service of the notice. Section 88 reads thus : “Service of notice.- Any notice required to be served on, or given to, any person under this Act or the rules made there under shall be deemed to be duly served or given: - (a) if the notice is addressed to that person and is given or tendered to him; or (b) where that person cannot be found if it is affixed on some conspicuous part of his last known place of residence or business or is tendered to some adult member of his family; or (c) if it is sent by registered post or by courier service to that person at his last known place of residence or business, or (d) by sending by FAX if the FAX Number is known; or (e) by sending it by e-mail if the e-mail address is given by the person; or (f) if none of the modes aforesaid is practicable, by affixing it in some conspicuous place at his last -3- known place of business or residence or by publication in a newspaper.” In the light of the provisions contained in Section 88 of the Act, even though the notice served personally on the assessee could be regarded as a valid notice, in so far as the impugned order is an ex parte one and in so far as the assessee disputes the factum of receipt of notice, I deem it appropriate to grant the petitioner an opportunity of hearing to raise his objections against the proposal made by the assessing authority, for the controversy would not have arisen, had the petitioner been given notice by the assessing authority by registered post.

In the result, the writ petition is allowed, Ext.P3 order is set aside and the competent authority under the Central Sales Act is directed to pass fresh orders, after affording the petitioner an opportunity of hearing. The petitioner shall appear for hearing on 15.3.2018 and shall also produce the C forms and other documents required to substantiate his contentions on the said day. P.B.SURESH KUMAR, JUDGE SKS