IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
THURSDAY, THE 23RD DAY OF JUNE 2022 / 2ND ASHADHA, 1944
WP(C) NO. 16364 OF 2022
PETITIONER/S:
VIJU V.K.
AGED 53 YEARS
VANACHIRACKAL HOUSE, THENGODE P.O., ERNAKULAM, KOCHI -
682 030.
BY ADVS.
HARISANKAR V. MENON
MEERA V.MENON
K.KRISHNA
RESPONDENT/S:
1 THE ASST.COMMISSIONER (WC)
SGST DEPARTMENT, CLAS TOWER, OLD RAILWAY STATION ROAD,
ERNAKULAM, KOCHI - 682 018.
2 THE STATE TAX OFFICER
WORKS CONTRACT, STATE GOODS & SERVICES TAX DEPARTMENT,
ERNAKULAM, KOCHI - 682 018.
ADV. DR. THUSHARA JAMES (SR. GP)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 16364 OF 2022 2
JUDGMENT
Petitioner has approached this Court, challenging Ext.P6 order under Section 66 of the Kerala Value Added Tax Act (hereinafter referred to as 'the KVAT Act'), suo motu rectifying Ext.P5 order of assessment to the disadvantage of the petitioner, without affording an opportunity of hearing to the petitioner.
2. Learned counsel appearing for the petitioner submits that Ext.P5 was an order passed by the Assessing Authority pursuant to a remand by the First Appellate Authority. It is submitted that at the stage of passing Ext.P5 order, the petitioner was given an opportunity of hearing and the petitioner had also submitted its reply. It is submitted that after passing Ext.P5 order, the Assessing Officer has suo moto revised the said order by issuing Ext.P6 and increasing the tax demand from that demanded in Ext.P5, without affording any opportunity of hearing to the petitioner. It is submitted that this is contrary to the provisions of the Statute as contained in Section 66 of the KVAT Act.
3. Learned Government Pleader points out that following the remand, the Assessing Officer had provided an opportunity of WP(C) NO. 16364 OF 2022 3 hearing to the petitioner and Ext.P6 cannot be strictly said to be an order to the disadvantage of the petitioner. It is submitted that the petitioner has an effective alternative remedy and there is no reason for this Court to interfere with Ext.P6 under Article 226 of the Constitution of India.
4. Having heard the learned counsel appearing for the petitioner and the learned Senior Government Pleader and having regard to the fact that Ext.P6 appears to have been issued without affording an opportunity of hearing to the petitioner or without issuing any notice to the petitioner, I am of the view that Ext.P6 is liable to be set aside. It is settled law that where an order is passed in violation of the principles of natural justice, the availability of an alternative remedy does not bar this Court from interfering with the order in question. It cannot be disputed that Ext.P6 is an order to the disadvantage of the petitioner as the tax demand has increased substantially from what was demanded in Ext.P5. Therefore, this writ petition is allowed. Ext.P6 is quashed with a direction to the 1 st respondent to pass such orders as he deems fit in exercise of the jurisdiction under Section 66 of the KVAT Act, after affording an opportunity of hearing to the petitioner. The petitioner shall appear before the WP(C) NO. 16364 OF 2022 4 1st respondent at 11.00 am on 01.07.2022 and thereafter, the proceedings shall be completed in accordance with law, within a period of one month from the date of receipt of a certified copy of this judgment.
The writ petition is allowed as above.
sd/-
GOPINATH P.
JUDGE ajt WP(C) NO. 16364 OF 2022 5 APPENDIX OF WP(C) 16364/2022 PETITIONER EXHIBITS Exhibit P1 COPY OF NOTICE ISSUED BY THE 1ST RESPONDENT. Exhibit P2 COPY OF REPLY FILED BY THE PETITIONER. Exhibit P3 COPY OF ORDER ISSUED BY 1ST RESPONDENT FOR THE YEAR 2012-13.
Exhibit P4 COPY OF ORDER IN KVATA NO.737/2018 OF THE DY.
COMMISSIONER (APPEALS)-IV, ERNAKULAM.
Exhibit P5 COPY OF ORDER ISSUED BY THE 2ND RESPONDENT. Exhibit P6 COPY OF ORDER ISSUED BY THE 2ND RESPONDENT.