IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944
WP(C) NO. 13049 OF 2018
PETITIONER/S:
M/S.MANAPPURAM JEWELLERS LTD.
MANAPPURAM HOUSE,VALAPPAD P.O., THRISSUR
DISTRICT,REPRESENTED BY ITSCHIEF FINANCE OFFICER,
BASANTH BHASKAR
BY ADVS.
SRI.HARISANKAR V. MENON
SMT.K.KRISHNA
SMT.MEERA V.MENON
RESPONDENTS:
1 THE ASST. COMMISSIONER (ASSESSMENT) - II
COMMERCIAL TAXES SPECIAL CIRCLE,THRISSUR-680001
2 THE INSPECTING ASST. COMMISSIONER
DEPARTMENT OF COMMERCIAL TAXES, THRISSUR-680001
OTHER PRESENT:
SMT. JASMIN MM(GP)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
06.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) 13049/2018
2
JUDGMENT
Dated this the 6th day of July, 2022 The petitioner has approached this Court challenging Ext.P12 order of assessment issued under Section 25(1) of the Kerala Value Added Tax Act in respect of assessment year 2010- 2011.
2. The assessment of the petitioner was originally completed for the assessment year 2010-2011 through Ext. P1 order dated 16.11.2011. The petitioner filed an appeal before the first appellate authority which was decided by Ext.P2, on 30.05.2012 and was subsequently modified by Ext.P2(a) order dated 07.06.2012. The petitioner challenged the order issued by the first appellate authority before the Sales Tax Appellate Tribunal by filing TA (VAT) No. 845 of 2012. When the matter was pending before the Appellate Tribunal, yet another assessment order namely, Ext. P3, was issued by the assessing authority on 22.09.2012. The petitioner challenged Ext. P3 W.P.(C) 13049/2018 3 order by filing an appeal before the appellate authority, but by Ext. P5 order dated 27.08.2014 the matter was remanded to the assessing authority with a direction to reconsider the matter after verifying the books of accounts. The Tribunal also directed that the matter be remanded to the assessing authority for reconsideration of the books of accounts and the other documents produced by the petitioner. The petitioner took up the matter with the assessing authority through Ext. P6 letter dated 02.04.2014 and Ext. P7 letter dated 22.01.2015. It is the grievance of the petitioner that, thereafter the assessing authority has finalized the matter through Ext. P12 order dated 27.03.2018 without referring to the materials produced by the petitioner and without giving it an opportunity of being heard. It is submitted that on two occasions when the matter was listed before the assessing authority, the petitioner had sought adjournment and the matter has been finalized ex parte.
3. The learned counsel appearing for the petitioner submits that though Ext. P12 order is an appealable order, the petitioner is entitled to challenge the said order under Article W.P.(C) 13049/2018 4 226 of the Constitution of India before this court on account of the fact that Ext. P12 order suffers from two defects. It is submitted that Ext.P12 is issued in complete violation of the principles of natural justice as the petitioner was not heard before Ext.P12 order was issued. Further, it is submitted that the contentions taken by the petitioner in Exts. P6 and P7 have also not been considered by the assessing officer while passing Ext. P12 order. It is submitted that considering the over all facts and circumstances, this is a matter which has to be remanded to the assessing authority to complete the assessment after affording an opportunity of hearing to the petitioner.
4. Learned Government Pleader would submit with reference to Ext. P12 order that the allegations of the petitioner that the petitioner was not given an opportunity of hearing is absolutely incorrect. It is pointed out that on two occasions the petitioner was given opportunity to appear before the assessing authority and raise all its contentions, but the petitioner failed to do so. It is submitted that there is no jurisdictional error or other defects in Ext.P12 order warranting exercise of jurisdiction W.P.(C) 13049/2018 5 of this Court under Article 226 of the Constitution of India at this stage of the proceedings. It is submitted that the petitioner has an effective remedy before the appellate authority against Ext. P12. It is submitted that the petitioner is not entitled to an order for remand as the petitioner had failed to avail the opportunity granted to it before the assessing authority.
5. Having heard the learned counsel for the petitioner and the learned Government Pleader, I am of the opinion that the petitioner has not been able to point out any jurisdictional error or violation of the principles of natural justice which would enable this Court to interfere with Ext. P12, notwithstanding the existence of an alternate remedy.
Therefore, it is for the petitioner to approach the appellate authority by filing an appeal against Ext. P12 order. To enable the petitioner to file an appeal together with a stay petition, the period during which this petition was pending before this court, namely, from 11.04.2018 till today, shall be excluded from the period of limitation within which the appeal W.P.(C) 13049/2018 6 has to be filed against Ext.P12 order. If an appeal and a stay petition are filed against Ext.P12 within a period of two weeks from today, any demand pursuant to Ext.P12 shall not be enforced against the petitioner till a decision is taken on the stay petition to be filed by the petitioner.
Writ Petition is disposed of as above.
Sd/-
GOPINATH P.
JUDGE sb W.P.(C) 13049/2018 7 APPENDIX OF WP(C) 13049/2018 PETITIONER EXHIBITS EXHIBIT P1: COPY OF ASSESSMENT ORDER ISSUED BY THE COMMERCIAL TAX OFFICER, CHAVAKKAED FOR THE YEAR 2010-11 EXHIBIT P2: COPY OF THE ORDER ISSUED BY THE ASST.
COMMISSI9NER (APPEALS), THRISSUR FOR 2010- 11 EXHIBIT P2(A): COPY OF ORDER ISSUED BY THE ASST.
COMMISSIONER (APPEALS), THRISSUR FOR 2010- 11 EXHIBIT P3: COPY OF ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2010-11 EXHIBIT P4: COPY OF ORDER IN TA (VAT) NO.845/2012 ISSUED BY THE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL, ERNAKULAM EXHIBIT P5: COPY OF THE APPELLATE ORDER IN KVAT 3079/12 ISSUED BY THE DY. COMMISSIONER (APPEALS), ERNAKULAM FOR 2010-11 EXHIBIT P6: COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT EXHIBIT P7: COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT EXHIBIT P8: COPY OF NOTICE ISSUED BY THE 1ST RESPONDENT EXHIBIT P9: COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT EXHIBIT P10 COPY OF NOTICE ISSUED BY THE 1ST RESPONDENT EXHIBIT P11: COPY OF THE LETTER SUBMITTED BY THE W.P.(C) 13049/2018 8 PETITIONER BEFORE THE 1ST RESPONDENT EXHIBIT P12: COPY OF ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2010-11