Euro Business System vs State Of Kerala
2021 Latest Caselaw 13049 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                  THE HONOURABLE MR.JUSTICE S.V.BHATTI
                                    &
           THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
       FRIDAY, THE 18TH DAY OF JUNE 2021 / 28TH JYAISHTA, 1943
                           WA NO. 778 OF 2021
AGAINST THE     JUDGMENT IN WP(C) 6224/2021 OF HIGH COURT OF KERALA,
                               ERNAKULAM
APPELLANT/:

           M/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 18.06.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WA NO.778 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 WA NO.778 OF 2021 ..3..

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.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 Senior Government Pleader for the respondents.

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

assessment notice dated 17.08.2020 issued under Section 25

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

short) for the year 2015-16, 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"

 WA NO.778 OF 2021                ..4..


photocopy     machines,   the    appellant   submitted   Ext.P4

additional reply/objection 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 2015-

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

Ext.P4 reply/objection. The appellant points out that, in Ext.

P5 order, the 2nd respondent has originally put the date of

order as 30.10.2020, which is then scorred-off and written as

30.09.2020. 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 WA NO.778 OF 2021 ..5..

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 Ext. P4 additional

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 admission today,

the learned Senior Government Pleader made available 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

objection/reply filed by the assessee, we find that Ext.P4

additional objection/reply filed by the assessee was well

within the knowledge of the 2nd respondent before the order

was issued for communication to the assessee. Non WA NO.778 OF 2021 ..6..

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 Judge