R Logic Technology vs. State Of Kerala - 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. 451 of 2018 PETITIONER R LOGIC TECHNOLOGY 39/1639, B,C,D, KALATHIPARAMBU ROAD, NEAR SOUTH OVER BRIDGE, KOCHI - 682 016, REPRESENTED BY ITS CENTRE MANGER AND AUTHORISED SIGNATORY, MR. RAJENDRA KURUP. BY ADVS.SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM SRI.RAJA KANNAN RESPONDENTS: 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2. THE COMMERICAL TAX OFFICER KVAT CIRCLE IV, STATE GOODS AND SERVICES TAX DEPARTMENT, KERALA, ERNAKULAM - 682 015. 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. 451 of 2018 (F) APPENDIX PETITIONER'S EXHIBITS EXHIBIT P1. A TRUE COPY OF THE NOTICE SECTION 25(1) OF THE KVAT ACT DATED 18.092017 ISSUED BY THE 2ND RESPONDENT EXHIBIT P2. A TRUE COPY OF THE AUTHORIZATION AS PROVIDED UNDER FORM NO.27 OF KERALA VALUE ADDED TAX RULES, 2005 AUTHORIZING THE CHARTERED ACCOUNTANT DATED 15.09.2017 EXHIBIT P3. A TRUE COPY OF THE REPLY DATED 05.10.2017 ALONG WITH RECONCILIATION STATEMENT SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT EXHIBIT P4. A TRUE COPY OF THE ASSESSMENT ORDER DATED 10.11.2017 PASSED BY THE 2ND RESPONDENT RESPONDENT'S EXHIBITS:NIL //TRUE COPY// SD/- PA TO JUDGE rsr P.B.SURESH KUMAR, J. -------------------------------------------- W.P.(C).No.451 of 2018 --------------------------------------------------------------- Dated this the 26th day of February, 2018

J U D G M E N T

Petitioner was an assessee under the Kerala Value Added Tax Act (the Act). The escaped turnover of the petitioner for the year 2014-'15 was sought to be assessed in terms of Section 25(1) of the Act. Ext.P1 is the notice issued to the petitioner by the Assessing Authority in this connection. In terms of Ext.P1 notice, the petitioner was directed to file objections against the proposal made therein, within fifteen days. The case of the petitioner is that in response to Ext.P1, petitioner submitted Ext.P3 objections and appeared for hearing before the assessing authority. It is also the case of the petitioner that he was : 2 : then informed by the assessing authority that the matter will be heard on a later date and the date of hearing will be communicated to the petitioner. According to the petitioner, thereupon, without affording the petitioner an opportunity of hearing, Ext.P4 order has been passed. Ext.P4 is under challenge in the writ petition mainly on the ground that Ext.P4 is vitiated for non-compliance of the principles of natural justice.

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

The learned Government Pleader, on instructions, submitted that after the submission of reply by the petitioner to Ext.P1 notice, a hearing notice was issued to the petitioner by ordinary post and it is thereafter Ext.P4 order was passed. Section 88 of the Act deals with the mode of service of notice contemplated under the statutes. Section 88 reads thus:

“88. Service of notice- Any notice required to be served on, or given to, any person under this Act or the rules made : 3 : thereunder 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 or 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 known place of business or residence or by publication in a newspaper.” Notice by ordinary post is not a mode contemplated under the statute. In the said view of the matter, I am in agreement with the case set up by the petitioner that Ext.P4 order, which is impugned in the writ petition, is vitiated for non-compliance of the principles of natural justice. The writ petition, in the circumstances, is allowed, the impugned order is quashed and the assessing authority is directed to pass fresh orders on Ext.P1 notice, after affording the : 4 : petitioner an opportunity of hearing. The petitioner shall appear for hearing on 15.03.2018. P.B.SURESH KUMAR

JUDGE rsr