M/S.Hotel Saj Lucia vs The Commercial Tax Officer ...
2021 Latest Caselaw 688 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

     FRIDAY, THE 08TH DAY OF JANUARY 2021 / 18TH POUSHA, 1942

                         WP(C).No.587 OF 2021


PETITIONER:

               M/S.HOTEL SAJ LUCIA
               KANICHAI HOTELS PVT.LTD., EAST FORT,
               THIRUVANANTHAPURAM, REPRESENTED BY ITS GENERAL
               MANAGER, SHRI.REJI K.VARGHESE.

               BY ADV. SRI.MILLU DANDAPANI

RESPONDENTS:

      1        THE COMMERCIAL TAX OFFICER (LUXURY TAX)
               OFFICE OF THE DEPUTY COMMISSIONER, COMMERCIAL TAXES,
               THIRUVANANTHAPURAM - 695 002.

      2        STATE TAX OFFICER (LUXURY TAX)
               OFFICE OF THE JOINT COMMISSIONER, STATE GST
               DEPARTMENT, KARAMANA, THIRUVANANTHAPURAM - 695 002.

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



               SMT. THUSHARA JAMES - GP

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
08.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.587 OF 2021                   2

                                JUDGMENT

The petitioner, which is stated to be a

Hotel, has approached this Court impugning

Exts.P12 and P13 assessment orders issued by

the 2nd respondent - State Tax Officer.

2. According to Shri.Millu Dandapani,

learned counsel for the petitioner, the

impugned orders have been issued even without

affording an opportunity of being heard to his

client, but recording that the applicable

returns have not been filed. Shri.Millu

Dandapani submits that, as is evident from the

pleadings and the materials on record, the

hearing date offered to the petitioner was

15/01/2020, which was a local holiday on

account of the festival of 'Thaipongal'; and

that the returns with respect to the

assessment year in question had already been

submitted. He, therefore, prays that this writ

petition be ordered and Exts.P12 and P13 be

set aside.

3. In response, the learned Government

Pleader, Smt.Thushara James, conceded that

Exts.P12 and P13 have been issued without

hearing the petitioner, but contended that

they cannot be found to be vitiated for that

reason alone. She submitted that the said

orders make it clear that the 2nd respondent -

State Tax Officer had applied his mind

properly and that the assessment has been made

in terms of law.

4. As an alternative submission, the

learned Government Pleader, submitted that if

this Court is, however, inclined in favour of

the petitioner, then the 2nd respondent may be

allowed to make a fresh assessment, after

affording an opportunity of being heard to the

petitioner also.

5. When I consider the afore submissions

it is indubitable, even going by Exts.P12 and

P13, that the petitioner has not been heard

and it is so recorded in the said orders. I

am, therefore, of the view that they require

to be given the opportunity of being heard

before an assessment of the nature as Exs.P12

and P13 can be allowed to operate.

In the afore circumstances, I order this

writ petition and set aside Exts.P12 and P13,

not because I have found against it

affirmatively, but so as to pave way for a

fresh consideration at the hands of the 2nd

respondent.

Resultantly, the 2nd respondent is

directed to reconsider the matter and issue a

fresh assessment, after affording an

opportunity of being heard to the authorized

person of the petitioner - either physically

or through video conferencing - as

expeditiously as is possible, but not later

than two months from the date of receipt of a

copy of this judgment.

In order to enable an expeditious

compliance with the directions in this

judgment, I direct the petitioner to mark

appearance in the office of the 2nd respondent

at 11.00 a.m. on 19/01/2021; on which day,

they will either be heard or a suitable date

fixed for such purpose.

Sd/-

DEVAN RAMACHANDRAN

JUDGE

MC/11.1.2021

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE PROCEEDINGS ASSESSMENT ORDER NO.LT-32015260157/14-15 OF THE 1ST RESPONDENT COMMERCIAL TAX OFFICER DTD.22/01/2018.

EXHIBIT P2 TRUE COPY OF THE PROCEEDINGS ASSESSMENT ORDER NO.LT-32015260157/2015-16 OF THE 2ND RESPONDENT DTD. 22/02/2018.

EXHIBIT P3 TRUE COPY OF THE NOTICE NO.32015260157/2014-15 & 2015-16 ISSUED BY THE 2ND RESPONDENT DTD. 08/11/2019. EXHIBIT P4 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT DT. 20/11/2019.

EXHIBIT P5 TRUE COPY OF THE NOTICE LT NO.32015260157/2014-15 ISSUED BY THE 2ND RESPONDENT 06/01/2020.

EXHIBIT P6 TRUE COPY OF THE NOTICE LT NO.32015260157/2015-16 ISSUED BY THE 2ND RESPONDENT 06/01/2020.

EXHIBIT P7 TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 2ND RESPONDENT DTD. 18/01/2020. EXHIBIT P8 TRUE COPY OF THE EMAIL SEND TO THE [email protected] DTD. 20/01/2020. EXHIBIT P9 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DTD. 03/02/2020.

EXHIBIT P10 TRUE COPY OF THE NOTICE NO.32015260157-15-

16, 16-17 & 17-18 ISSUED BY THE 2ND RESPONDENT DTD. 08/06/2020.

EXHIBIT P11 TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 2ND RESPONDENT DTD. 12/06/2020. EXHIBIT P12 TRUE COPY OF ASSESSMENT ORDER NOLT.32015260157/2014-15 DTD. 01/12/2020 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P13 TRUE COPY OF ASSESSMENT ORDER NO.LT.32015260157/2015-16 DTD. 01/12/2020 ISSUED BY THE 2ND RESPONDENT.