M/S. Favourite Constructions ... vs State Of Kerala
2021 Latest Caselaw 3946 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                  THE HONOURABLE MR. JUSTICE A.M.BADAR

    WEDNESDAY, THE 03RD DAY OF FEBRUARY 2021 / 14TH MAGHA,1942

                        WP(C).No.2804 OF 2021(A)


PETITIONER/S:

                M/s. FAVOURITE CONSTRUCTIONS PRIVATE LIMITED,
                TC 82/2336(2), STATUTE, GENERAL HOSPITAL ROAD,
                TRIVANDRUM-695 001, REPRESENTED BY ITS MANAGING
                DIRECTOR, MR. MARTIN THOMAS EZEKIEL.

                BY ADVS.
                SRI.M.GOPIKRISHNAN NAMBIAR
                SRI.K.JOHN MATHAI
                SRI.JOSON MANAVALAN
                SRI.KURYAN THOMAS
                SRI.PAULOSE C. ABRAHAM
                SRI.RAJA KANNAN

RESPONDENT/S:

      1         STATE OF KERALA,
                REPRESENTED BY ITS SECRETARY TO GOVERNMENT, TAXES
                DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

      2         THE DEPUTY COMMISSIONER OF STATE TAX,
                STATE GOOD AND SERVICES, TAX DEPARTMENT, (WORKS
                CONTRACT), TAX TOWER, KARAMANA,
                THIRUVANANTHAPURAM-695 002.



                GP-- THUSHARA JAMES

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
03.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.2804 OF 2021               2



                             JUDGMENT

Dated this the 3rd day of February 2021

Heard both sides.

2. According to the learned counsel appearing for the

petitioner, his application for rectification of error apparent on the

face of record in an assessment order at Ext.P8, was rejected

without hearing him despite the fact that in the application for

rectification (Ext.P9), he has categorically requested for an

opportunity of hearing.

3. Learned counsel appearing for the petitioner submitted

that the assessment order passed at Ext.P8 is suffering from

error apparent on the face of the record in the light of previous

assessment order at Ext.P1 and therefore, the rectification

application ought to have been heard and decided with a

reasoned order.

4. Learned Government Pleader drew my attention to the

provisions of Section 66 of the Kerala Value Added Tax Act

(hereinafter referred to as 'the KVAT Act') and submitted that

only in case of enhancing an assessment or penalty, the parties

are entitled to be heard while passing order on rectification

application.

5. I have perused the provisions of Section 66 of the

KVAT Act. The said provision deals with power of the authority to

rectify any error apparent of the face of record. However, I am

unable to find out any provision in the said Section which

declaring that no opportunity of hearing can be granted to the

assessee filing an application for rectification.

6. In the case in hand, the application for rectification

under section 66 of the KVAT Act (Ex.P9) contains a specific

prayer made by the petitioner that his application for rectification

should be decided after granting an opportunity of personal

hearing to him. It is evident from the order at Ext.P10 that no

opportunity of hearing was granted to the petitioner while passing

the order rejecting the application for rectification. Moreover, the

order at Ext.P10 cannot be said to be a reasoned order, rejecting

the application for rectification which has raised several grounds.

7. In the light of this factual situation, the writ petition is

disposed of with the following order:-

The impugned order at Ext.P10 is quashed and set aside.

The rectification application is remitted to the 2 nd respondent for

deciding the same afresh according to law after granting an

opportunity of hearing to the petitioner. The petitioner shall

appear before the 2nd respondent on 12.02.2021 at 11.30 am

along with necessary records for availing an opportunity of

hearing. The parties to act upon authenticated copy of this order.

Needless to mention that other challenges raised by the petitioner

are kept open as the writ petition is allowed on the limited ground

of not following principles of natural justice while passing the

impugned order.

The writ petition is accordingly disposed of.

Sd/-

                                                 A.M.BADAR
ajt                                                JUDGE





                            APPENDIX
PETITIONER'S/S EXHIBITS:

EXHIBIT P1              TRUE COPY OF ASSESSMENT ORDER DATED
                        9.12.2014 PASSED BY THE ASSESSING

AUTHORITY, IN THE CASE OF THE PETITIONER FOR THE YEAR 2012-13

EXHIBIT P2 TRUE COPY OF THE NOTICE DATED 20.4.2016, ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT

EXHIBIT P3 TRUE COPY OF THE REPLY DATED 23.5.2016 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT

EXHIBIT P4 TRUE COPY OF THE NOTICE DATED 16.6.2016 ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT

EXHIBIT P5 TRUE COPY OF THE LETTER DATED 13.7.2016, UNDER COVER OF WHICH THE DOCUMENTS AFORESAID WERE PRODUCED (WITHOUT ENCLOSURES)

EXHIBIT P6 TRUE COPY OF THE NOTICE DATED 5.2.2020 ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT

EXHIBIT P7 TRUE COPY OF THE OBJECTION DATED 27.2.2020 FILED BY THE PETITIONER BEFORE THE 2N RESPONDENT

EXHIBIT P8 TRUE COPY OF THE ASSESSMENT ORDER DATED 27.7.2020 ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT

EXHIBIT P9 TRUE COPY OF THE PETITION FOR RECTIFICATION DATED 11.1.2021 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT

EXHIBIT P10 TRUE COPY OF THE ORDER DATED 20.1.2021 PASSED BY THE 2ND RESPONDENT AND SERVED ON THE PETITIONER ON 23.1.2021