L.G. Electronics India Pvt. Ltd vs The Deputy Commissioner, ...
2021 Latest Caselaw 12939 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
              THE HONOURABLE MR.JUSTICE V.G.ARUN
 TUESDAY, THE 15TH DAY OF JUNE 2021 / 25TH JYAISHTA, 1943
                      WP(C) NO. 12204 OF 2021
PETITIONER/S:

         L.G. ELECTRONICS INDIA PVT. LTD.
         34/565B,1ST FLOOR,FORTUNE ARCADE,
         N.H.BYPASS,PADIVATTOM,EDAPALLY COCHIN-
         682024,REPRESENTED BY ITS BRANCH ACCOUNTS
         MANAGER,JACKSON JOSEPH.
         BY ADVS.
         HARISANKAR V. MENON
         MEERA V.MENON


RESPONDENT/S:

    1    THE DEPUTY COMMISSIONER, DEPARTMENT OF STATE GST
         DEPARTMENT OF STATE GST,SPECIAL CIRCLE-
         1,ERNAKULAM-682015.
    2    THE COMMISSIONER OF COMMERCIAL TAXES,
         STATE GST DEPARTMENT,TAX
         TOWERS,KILLIPPALAM,KARAMANA,
         THIRUVANANTHAPURAM-695002.
OTHER PRESENT:

         GP PRIYA SHANAVAS

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

15.06.2021,     THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE

FOLLOWING:
 W.P.(C) No.12204 of 2021
                                2



                            JUDGMENT

Dated this the 15th day of June, 2021

Petitioner is an assessee for KVAT under the

rolls of the first respondent. The petitioner had

filed Exts.P1 and P1(a) returns in Form No.10 and

10B with respect to the year 2015-16. Thereupon,

the petitioner was issued with Ext.P2 notice under

Section 25(1) of the KVAT Act. On receipt of the

notice, petitioner filed Ext.P3 objection and

Ext.P3(a) objections. The petitioner also

requested for an opportunity of hearing and

permission to produce further documents. While the

petitioner was awaiting such opportunity, it was

served with Ext.P4 assessment order. The writ

petition is filed challenging Ext.P4 order mainly

on the ground that the order, issued without

extending opportunity of hearing to the W.P.(C) No.12204 of 2021

petitioner, is ex facie illegal.

2. Sri.Harisankar V. Menon, learned Counsel

for the petitioner submitted that, having granted

time for filing objection till 18.03.2021, the

order passed on 18.03.2021, without considering

the reply, is illegal. The further contention of

the learned Counsel is that the order is bad for

non-application of mind.

3. Smt.Priya Shanavas, learned Government

Pleader questioned the very maintainability of

the writ petition, in view of the efficacious

alternative remedy of appeal provided under the

Act. Referring to Ext.P4 order, it is contended

that sufficient opportunity was granted and

allegations to the contrary are false.

4. A perusal of Ext.P4 order shows that on

13.08.2020, opportunity of being heard in person

was given to the petitioner. Based on the W.P.(C) No.12204 of 2021

subsequent notice, the petitioner filed replies on

25.10.2020 and 18.03.2021. The Accounts Manager

and Commercial Assistant in the petitioner's

establishment had appeared before the Assessing

Officer on 18.03.2021 and had produced certain

additional details. In such circumstances, the

contention that the order was passed without

affording opportunity of hearing cannot be

countenanced. The decision in Suzion

Infrastructure Services v. Commercial Tax Officer

[2010(3) KHC 299] relied on by the petitioner was

rendered on entirely different set of facts and

therefore, has no application to the case at hand.

5. It is well settled that when the parties

have an alternative statutory remedy, the

extraordinary jurisdiction under Article 226 will

be exercised only when the fundamental rights are

found to have been infringed or the order issued W.P.(C) No.12204 of 2021

without jurisdiction. In [Shivram Poddar v. ITO,

AIR 1964 SC 1095 : (1964) 51 ITR 823], the

honourable Apex Court has exposited this position

in the following words:

"13. We may observe that we have proceeded to decide this case on the footing that the business of the firm was discontinued on dissolution of the firm. It is however necessary once more to observe, as we did in O.A. Abraham case [(1961) 2 SCR 765] that the Income Tax Act provides a complete machinery for assessment of tax, and for relief in respect of improper or erroneous orders made by the Revenue Authorities. It is for the Revenue Authorities to ascertain the facts applicable to a particular situation, and to grant appropriate relief in the matter of assessment of tax. Resort to the High Court in exercise of its extra-ordinary jurisdiction conferred or recognised by the Constitution in matters relating to assessment levy and collection of Income tax may be permitted only when questions of infringement of fundamental rights arise, or where on undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess. In attempting to by-pass the provisions of the Income Tax Act by inviting the High Court to decide questions which are primarily within the jurisdiction of the Revenue Authorities, the party approaching the Court has often to ask the Court to make assumptions of facts which remain to be investigated by the Revenue Authorities."

W.P.(C) No.12204 of 2021

6. Having found the contention regarding

denial of reasonable opportunity of hearing to be

wrong, I find no reason to entertain this writ

petition, since the petitioner has an effective

alternative remedy.

In the result, the writ petition is dismissed,

leaving it open for the petitioner to avail the

appellate remedy provided under the KVAT Act.

Sd/-

V.G.ARUN JUDGE Scl/15.06.2021 W.P.(C) No.12204 of 2021

APPENDIX PETITIONER'S/S EXHIBITS:

Exhibit P1 COPY OF RETURN IN FORM NO.10 OF THE PETITIONER.

Exhibit P1(A) COPY OF RETURN IN FORM NO.10B OF THE PETITIONER.

Exhibit P2 COPY OF NOTICE ISSUED BY THE ASST.COMMISSIONER Exhibit P3 OBJECTION FILED BY THE PETITIONER Exhibit P3(A) OBJECITON FILED BY THE PETITIONER Exhibit P4 COPY OF ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT Exhibit P5 COPY OF ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2008-09.