M/S. Euro Business System vs State Of Kerala
2021 Latest Caselaw 13018 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                   THE HONOURABLE MR.JUSTICE S.V.BHATTI
                                     &
              THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
         THURSDAY, THE 17TH DAY OF JUNE 2021 / 27TH JYAISHTA, 1943
                            WA NO. 774 OF 2021
  AGAINST THE JUDGMENT IN WP(C) 6200/2021 OF HIGH COURT OF KERALA,
                                 ERNAKULAM
APPELLANT/PETITIONER:

              M/S. EURO BUSINESS SYSTEM
              ROOM NO A.381, 4TH FLOOR, BLOCK 1, NEW BUS STAND,
              THAVAKKARA, KANNUR-670 001, REPRESENTED BY ITS PARTNER-
              MR.PRAKSH.T.
              BY ADVS.
                     M.GOPIKRISHNAN NAMBIAR
                     K.JOHN MATHAI
                     JOSON MANAVALAN
                     KURYAN THOMAS
                     PAULOSE C. ABRAHAM
                     RAJA KANNAN


RESPONDENTS/RESPONDENTS:

       1. STATE OF KERALA
  1.




          REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
          TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001

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




OTHER PRESENT:

              SR GP SRI.SHAMSUDHEEN V.K.

THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17.06.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A.774/2021                  2




                         JUDGMENT

Murali Purushothaman, J.

The appellant, a dealer of printers, peripherals and its

parts has approached this Court challenging Ext.P4 order of

assessment issued by the State Tax Officer and Ext.P8 order

rejecting the rectification application. Ext.P4 order of

assessment is impugned on the ground that the same is

passed without considering Ext.P3 reply filed by the appellant

and Ext.P8 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 submitted

subsequently needs to be considered by the statutory

appellate authority by calling for records and proceedings of

the assessment order and the 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.P8 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 Senior 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) for the year 2016-17, the appellant, pursuant to Ext. P2

notice appeared before the State Tax Officer on 29.09.2020

and sought time for filing reply, which was agreed upon to be

filed on or before 25.10.2020. Accordingly, the appellant filed

Ext. P3 reply on 22.10.2020 objecting to the proposals in Ext.

P1 notice, the receipt whereof is evident from the

endorsement on Ext. P3. While so, on 10.12.2020, the

appellant received Ext.P4 ex-parte order dated 30.09.2020,

wherein the 2nd respondent completed the best judgment

assessment for the year 2016-17, holding that there is no

response to the notice issued to the appellant. According to

the appellant, Ext.P4 order was despatched from the office of

the 2nd respondent after 64 days from the date of order borne

out from Ext.P4, 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.P3 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 Ext. P3 reply

filed by the assessee on 22.10.2020 ought to have been

considered by the assessing authority.

4. When the Writ Appeal came up for admission on

16.06.2021, we asked the learned Senior Government Pleader

to get instructions in the case and accordingly, the matter was

posted today. The learned Senior Government Pleader has

made available a manuscript copy of Ext.P4 order which was

received by him by Email from the 2nd respondent.

5. Having perused Ext.P4 the typed copy of the

assessment order and also the manuscript copy of the same

and considering the fact that Ext.P4 was despatched from the

office of the 2nd respondent only after 64 days from the date of

order shown in Ext.P4, that too, after receipt of Ext.P3 reply

filed by the assessee, we find that Ext.P3 reply filed by the

assessee was well within the knowledge of the 2 nd respondent

before the order was issued for communication to the

assessee. Non consideration of Ext.P3 reply filed by the

assessee therefore amounts to violation of the principles of

natural justice. Accordingly, Ext.P4 is set aside. The 2 nd

respondent is directed to pass an order afresh by looking into

Ext.P3 reply given by the assessee on 22.10.2020. 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 spc/