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M/S.Spencers Retail Limited vs. The Deputy Commissioner Of State Tax (Appeals)

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WP(C)/2924/2018HC KeralaGSTCNR KLHC01034514201806 February 2018Bench: HONOURABLE MR. JUSTICE P.B.SURESH KUMAR5 pages

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Cause title — parties, addresses and appearances
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR TUESDAY, THE 6TH DAY OF FEBRUARY 2018 / 17TH MAGHA, 1939 WP(C).No. 2924 of 2018 PETITIONER(S) M/S.SPENCERS RETAIL LIMITED, SPENCER JUNCTION, M.G.ROAD, PALAYAM, THIRUVANANTHAPURAM, REPRESENTED BY ITS AUTHORIZED SIGNATORY, SRI.ANEESH KUMAR M. BY ADVS.SRI.A.KUMAR SRI.P.J.ANILKUMAR SMTG.MINI(1748) SRI.P.S.SREE PRASAD RESPONDENT(S): 1. THE DEPUTY COMMISSIONER OF STATE TAX (APPEALS), DEPARTMENT OF COMMERCIAL TAXES, THIRUVANANTHAPURAM-695001. 2. THE ASSISTANT COMMISSIONER-II (ASSESSMENT), SPECIAL CIRCLE, THIRUVANANTHAPURAM-695001. 3. THE ASSISTANT STATE TAX OFFICER, OFFICE OF THE ASSISTANT COMMISSIONER OF STATE TAX, STATE GOODS AND SERVICES TAX DEPARTMENT, THIRUVANANTHAPURAM-695001. R BY SR. GOVERNMENT PLEADER, SRI.V.K.SHAMSUDHEEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 2924 of 2018 (M) APPENDIX PETITIONER(S)' EXHIBITS EXHIBIT P1 TRUE COPY OF THE ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 2008-2009 DATED 30.4.2015. EXHIBIT P2 TRUE COPY OF THE ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 2009-2010 DATED 30.4.2015. EXHIBIT P3 TRUE COPY OF THE ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 2010-2011 DATED 30.4.2015. EXHIBIT P4 TRUE COPY OF THE MEMORANDUM OF APPEAL FOR THE ASSESSMENT YEAR 2008-2009 DATED 13.6.2015. EXHIBIT P5 TRUE COPY OF THE MEMORANDUM OF APPEAL FOR THE ASSESSMENT YEAR 2009-2010 DATED 13.6.2015. EXHIBIT P6 TRUE COPY OF THE MEMORANDUM OF APPEAL FOR THE ASSESSMENT YEAR 2010-2011 DATED 13.6.2015. EXHIBIT P7 TRUE COPY OF THE COMMUNICATION DATED 4.10.2017. EXHIBIT P8 TRUE COPY OF THE ADDITIONAL GROUNDS RAISED FOR THE ASSESSMENT YEAR 2009-2010 RAISED ON 4.10.2017. EXHIBIT P9 TRUE COPY OF THE LETTER DATED 4.10.2017. EXHIBIT P10 TRUE COPY OF THE COMMON APPELLATE ORDER FOR THE ASSESSMENT YEAR 2008-2009 AND 2010-2011 DATED 12.10.2017. EXHIBIT P11 TRUE COPY OF THE APPELLATE ORDER FOR THE ASSESSMENT YEAR 2009-2010 DATED 12.10.2017. EXHIBIT P12 TRUE COPY OF THE REVENUE RECOVERY NOTICE 08.1.2018. EXHIBIT P13 TRUE COPY OF THE RECTIFICATION APPLICATION FOR THE ASSESSMENT YEAR 2009-10. RESPONDENT'S EXHIBITS : NIL //TRUE COPY// sd/- P.A. TO JUDGE SKS P.B.SURESH KUMAR, J. = = = = = = = = = = = = = = W.P.(C).No.2924 of 2018 --------------------------------------------- Dated this the 6th day of February, 2018

JUDGMENT Petitioner is an assessee under the Kerala Value Added Tax Act (the Act) on the rolls of the second respondent. The escaped turnover of the petitioner for the year 2009-’10 has been assessed under Section 25(1) of the Act. Ext.P2 is the order passed in this regard. Ext.P2 order has been challenged by the petitioner in appeal. Ext.P11 is the order passed by the appellate authority in the appeal preferred against Ext.P2 order. The case of the petitioner is that after hearing the matter by the appellate authority, the petitioner raised additional grounds in the matter and the appeal has been disposed of thereafter without adverting to the additional grounds. The petitioner, therefore, challenges Ext.P11 order in this proceedings under Article 226 of the Constitution, though the same is appealable under Section 60 of the Act.

2.

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

3.

Though the petitioner claims that the additional grounds have been raised on 04.10.2017, it is submitted by the learned Government Pleader that the additional grounds have been received by the appellate authority on 11.10.2017. Ext.P11 order is seen passed only on 12.10.2017. In so far as the appeal was not finally disposed of on 11.10.2017, the appellate authority should have certainly considered the additional grounds raised by the petitioner. In the said view of the matter, according to me, Ext.P11 order is liable to be set aside and I do so. The appellate authority is directed to pass fresh orders on the appeal preferred by the petitioner against Ext.P2 order, after affording the petitioner an opportunity of hearing. This shall be done within two months from the date of receipt of a copy of this judgment. The petitioner shall appear for hearing on 01.03.2018. P.B.SURESH KUMAR,

JUDGE. SKS

Reproduced from the public record of the Kerala High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.