M/S.Popular Motor Corporation vs The Asst. Commissioner
2021 Latest Caselaw 7636 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                  THE HONOURABLE MR. JUSTICE A.M.BADAR

    THURSDAY, THE 04TH DAY OF MARCH 2021 / 13TH PHALGUNA, 1942

                        WP(C).No.4948 OF 2021(P)


PETITIONER/S:

                M/S.POPULAR MOTOR CORPORATION
                GEETHANJALI STOP, NH BYE PASS, VYTTILA,
                (NOW AT NEDUMBASSERY AT ALUVA-683 585),
                REPRESENTED BY ITS AUTHORISED SIGNATORY,
                K.K.KRISHNAKUMAR

                BY ADVS.
                SMT.S.K.DEVI
                SRI.M.RAJ MOHAN
                SRI.SHANMUGHAM D. JAYAN

RESPONDENT/S:

      1         THE ASST. COMMISSIONER
                KERALA STATE GOODS AND SERVICES TAX DEPARTMENT,
                SPECIAL CIRCLE III, ERNAKULAM-682 015

      2         THE INTELLIGENCE INSPECTOR,
                SQUAD NO.VII,DEPT OF COMMERCIAL TAXES,
                ( NOW STATE GOODS AND SERVICES TAX DEPARTMENT,
                KERALA), KOLLAM AT KOTTARAKKARA-691 506

      3         STATE OF KERALA,
                REPRESENTED BY ITS FINANCE SECRETARY, SECRETARIAT,
                THIRUVANANTHAPURAM-695 001




                SMT,THUSHARA JAMES, GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
04.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.4948 OF 2021                        2



                                 JUDGMENT

Dated this the 4th day of March 2021

The petitioner in this writ petition prays for quashing Ext.P1

assessment order.

2. Heard both sides.

3. Learned counsel appearing for the petitioner submits

that the assessment at Ext.P1 is passed in utter violation of

principles of natural justice. Learned counsel drew my attention

to the order at Ext.P1 and argued that the amount of

Rs.75,00,000/- (Rupees seventy five lakhs only) has been added

on the ground that suppressed turnover is detected as defect

No.10. My attention is drawn to the revised notice under Section

25(1) of the Kerala Value Added Tax Act at Ext.P3 to point out the

alleged defect No.3. With this, it is argued that the petitioner has

already approached this Court by filing W.P.(C). No.17912 of 2020

wherein all proceedings concerning the penalty imposed in respect

of the alleged suppressed turnout are stayed by this Court.

Learned counsel for the petitioner further submits that

subsequently, by Ext.P4 order, the stay was continued and the

stay order was handed over to the said authority. In this view of

the matter, according to the learned counsel for the petitioner, the

Assessing Officer ought not to have added the alleged suppressed

turnout detected as per defect No.10 as this Court has stayed the

proceedings pertaining to that aspect in the pending writ petition.

4. Learned Government Pleader opposed the petition by

contending that the petitioner has failed to produce the order at

Ext.P2 passed by this Court in W.P.(C). No.17912 of 2020 till

despatch of the order and therefore the petitioner cannot be heard

to say that the impugned order suffers from violation of principles

of natural justice.

5. I have considered the submissions so advanced and

perused the materials placed before me.

6. The defect No.10 was pointed out by the Assessing

Officer as per the revised notice under Section 25(1) of the KVAT

Act (Ext.P3). However, at the same time, it is seen that this Court

in W.P.(C). No.17912 of 2020 had issued notice before admission

and granted stay in respect of the proceedings pertaining to the

alleged defect No.10 pointed out in the revised notice under

Section 25(1) of the KVAT Act which is placed on record at Ext.P3.

In the light of this fact, it seems that the impugned order at

Ext.P1 has been passed oblivious of the fact that this Court has

passed impugned order in W.P.(C). No.17912 of 2020. In this

view of the matter, the impugned assessment order needs to be

quashed and set aside and the matter needs to be remitted to the

1st respondent for fresh assessment. Hence the following order:-

The writ petition is allowed. The impugned order at Ext.P1 is

quashed and set aside and the matter of assessment is remitted

to the concerned officer for deciding the same afresh after hearing

the petitioner and after considering the effect of the orders passed

by this Court in W.P.(C). No.17912 of 2020. The petitioner to

appear before the officer entrusted with the assessment on

08.03.2021 at 11.30 am and thereafter to abide by the directions

of the said officer. The Assessing Officer to determine the matter

of assessment within a period of six weeks from the date of

communication of this judgment to him by the petitioner. The

petitioner to cooperate with the Assessing Officer in expeditious

assessment.

Sd/-

                                                A.M.BADAR
ajt                                                JUDGE





                            APPENDIX
PETITIONER'S/S EXHIBITS:

EXHIBIT P1              TRUE COPY OF THE ORDER NO.32070408164/15-16
                        DATED 01.01.2021

EXHIBIT P2              TRUE COPY OF THE ORDER IN WPC NO.17912/2020
                        (L) DATED 26.8.2020

EXHIBIT P3              TRUE COPY OF THE NOTICE NO.32070408164/15-
                        16 DATED 19.10.2020

EXHIBIT P4              TRUE COPY OF THE ORDER IN WPC
                        NO.17912/2020(L) DATED 22.01.2021