Euro Business System vs State Of Kerala
2021 Latest Caselaw 12962 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                  THE HONOURABLE MR.JUSTICE S.V.BHATTI
                                     &
           THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
       TUESDAY, THE 15TH DAY OF JUNE 2021 / 25TH JYAISHTA, 1943
                           WA NO. 631 OF 2021
 AGAINST THE JUDGMENT IN WP(C) 6205/2021 OF HIGH COURT OF KERALA
APPELLANT/S:

            EURO BUSINESS SYSTEM
            ROOM NO. A. 381, 4TH FLOOR, BLOCK 1, NEW BUS STAND,
            THAVAKKARA, KANNUR - 67 0001, REPRESENTED BY ITS
            MANAGING PARTNER - MR. PRAKASH T.

            BY ADVS.
            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 - 695001.

   2      STATE TAX OFFICER
          3RD CIRCLE, KERALA STATE GST DEPARTMENT, 4TH FLOOR, BSNL
          BHAVAN, SOUTH BAZAR, KANNUR - 670012.

          BY ADV SR GOVERNMENT PLEADER SRI.SHAMSUDHEEN V.K.


THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 15.06.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WA NO. 631 OF 2021              ..2..


                            JUDGMENT

Murali Purushothaman, J.

The appellant, a dealer of printers, peripherals and its

parts has approached this Court challenging Ext.P5 order of

assessment issued by the State Tax Officer and Ext.P10 order

rejecting the rectification application. Ext.P5 order of

assessment is impugned on the ground that the same is

passed without considering Ext.P4 reply/objection filed by

the appellant and Ext.P10 order rejecting the rectification

application is challenged on the ground that it was passed

without addressing the apparent error on the face of record

pointed out by the appellant. The learned Single Judge

dismissed the writ petition holding that the question whether

the assessing officer ought to have considered the

reply/objection submitted subsequently needs to be

considered by the statutory appellate authority by calling for

records and proceedings of the assessment order and the WA NO. 631 OF 2021 ..3..

appellant has remedy of approaching the appellate authority

in that regard. The learned Single Judge held that the error

pointed out by the appellant in the rectification application is

not self evident or manifest and refused to interfere with

Ext.P10 order rejecting the rectification application. It is

challenging the judgment of the learned Single Judge

dismissing the writ petition this writ appeal is preferred.

2. We have heard Sri. Kurian Thomas, the learned

Counsel for the appellant and Sri. V.K. Shamsudheen, the

learned Government Pleader for the respondents.

3. According to the Appellant, in response to Ext.P1 pre-

assessment notice dated 10.08.2020 issued under Section 25

(1) of the Kerala Value Added Tax Act, 2003 (KVAT Act, for

short), the appellant appeared before the State Tax Officer

on 29.09.2020 and filed Ext.P3 reply. Since the appellant had

objection to the proposal in the pre-assessment notice with

regard to sale of "Task Alfa 180" photocopy machines, the

appellant submitted Ext.P4 additional reply/objection WA NO. 631 OF 2021 ..4..

whereby the appellant requested for the details relating to

the allegation regarding sale of "Task Alfa 180" photocopy

machines.

4. According to the appellant, the 2 nd respondent

received Ext.P4 additional reply personally on 30.10.2020 as

is evident from the endorsement on Ext. P4. However, on

25.11.2020, the appellant received Ext.P5 order of

assessment dated 30.09.2020, wherein the 2 nd respondent

completed the best judgment assessment for the year 2014-

15, by considering only Ext.P3 reply and without considering

Ext.P4 reply/objection. According to the appellant, Ext.P5

order was despatched from the office of the 2 nd respondent

after 55 days from the date of order borne out from Ext.P5,

and the order is predated so as to show on record that the

order of assessment was issued much prior to the filing of

Ext.P4 reply. The appellant contends that, it is trite law that,

until the assessment order is served on the assessee, the

assessment is not complete and the additional WA NO. 631 OF 2021 ..5..

objection/reply filed by the assessee on 30.10.2020 ought to

have been considered by the assessing authority.

5. When this writ appeal came up for consideration on

28.05.2021, taking note of the submission of the learned

Government Pleader that the order is not predated and that

the order was typed and despatched later, this Court

directed the learned Government Pleader to instruct the

concerned officer to send the copy of the manuscript of

Ext.P5 order through his official email. Accordingly, the

learned Government Pleader has filed a Memo producing the

manuscript copy of Ext.P5 order.

6. Having perused Ext.P5 the typed copy of the

assessment order and also the manuscript copy of the same

and considering the fact that Ext.P5 was despatched from

the office of the 2nd respondent only after 55 days from the

date of order shown in Ext.P5, that too after receipt of Ext.P4

additional objection/reply filed by the assessee, we find that

Ext.P4 additional objection/reply filed by the assessee was WA NO. 631 OF 2021 ..6..

well within the knowledge of the 2 nd respondent before the

order was issued for communication to the assessee. Non

consideration of Ext.P4 additional objection/reply filed by the

assessee therefore amounts to violation of the principles of

natural justice. Accordingly Ext.P5 is set aside. The 2 nd

respondent is directed to pass an order afresh by looking

into Ext.P4 additional objection/reply given by the assessee

on 30.10.2020. The said exercise shall be completed within

eight weeks from the date of receipt of copy of this

judgment. We make it clear that we have not expressed any

opinion on the merits of the matter.

The appeal is allowed as indicated above.

Sd/-

S.V.BHATTI JUDGE

Sd/-

MURALI PURUSHOTHAMAN JUDGE SB //true copy // P.A to Judgement