M/S.Manappuram Jewellers Ltd vs The Asst. Commissioner ...
2022 Latest Caselaw 8437 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MR. JUSTICE GOPINATH P.
     WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944
                        WP(C) NO. 13049 OF 2018
PETITIONER/S:

          M/S.MANAPPURAM JEWELLERS LTD.
          MANAPPURAM HOUSE,VALAPPAD P.O., THRISSUR
          DISTRICT,REPRESENTED BY ITSCHIEF FINANCE OFFICER,
          BASANTH BHASKAR

          BY ADVS.
          SRI.HARISANKAR V. MENON
          SMT.K.KRISHNA
          SMT.MEERA V.MENON



RESPONDENTS:

    1     THE ASST. COMMISSIONER (ASSESSMENT) - II
          COMMERCIAL TAXES SPECIAL CIRCLE,THRISSUR-680001

    2     THE INSPECTING ASST. COMMISSIONER
          DEPARTMENT OF COMMERCIAL TAXES, THRISSUR-680001


OTHER PRESENT:

          SMT. JASMIN MM(GP)




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
06.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) 13049/2018
                                         2




                                     JUDGMENT

Dated this the 6th day of July, 2022

The petitioner has approached this Court challenging

Ext.P12 order of assessment issued under Section 25(1) of the

Kerala Value Added Tax Act in respect of assessment year 2010-

2011.

2. The assessment of the petitioner was originally

completed for the assessment year 2010-2011 through Ext. P1

order dated 16.11.2011. The petitioner filed an appeal before

the first appellate authority which was decided by Ext.P2, on

30.05.2012 and was subsequently modified by Ext.P2(a) order

dated 07.06.2012. The petitioner challenged the order issued by

the first appellate authority before the Sales Tax Appellate

Tribunal by filing TA (VAT) No. 845 of 2012. When the matter

was pending before the Appellate Tribunal, yet another

assessment order namely, Ext. P3, was issued by the assessing

authority on 22.09.2012. The petitioner challenged Ext. P3 W.P.(C) 13049/2018

order by filing an appeal before the appellate authority, but by

Ext. P5 order dated 27.08.2014 the matter was remanded to

the assessing authority with a direction to reconsider the matter

after verifying the books of accounts. The Tribunal also directed

that the matter be remanded to the assessing authority for

reconsideration of the books of accounts and the other

documents produced by the petitioner. The petitioner took up

the matter with the assessing authority through Ext. P6 letter

dated 02.04.2014 and Ext. P7 letter dated 22.01.2015. It is the

grievance of the petitioner that, thereafter the assessing

authority has finalized the matter through Ext. P12 order dated

27.03.2018 without referring to the materials produced by the

petitioner and without giving it an opportunity of being heard. It

is submitted that on two occasions when the matter was listed

before the assessing authority, the petitioner had sought

adjournment and the matter has been finalized ex parte.

3. The learned counsel appearing for the petitioner

submits that though Ext. P12 order is an appealable order, the

petitioner is entitled to challenge the said order under Article W.P.(C) 13049/2018

226 of the Constitution of India before this court on account of

the fact that Ext. P12 order suffers from two defects. It is

submitted that Ext.P12 is issued in complete violation of the

principles of natural justice as the petitioner was not heard

before Ext.P12 order was issued. Further, it is submitted that

the contentions taken by the petitioner in Exts. P6 and P7 have

also not been considered by the assessing officer while passing

Ext. P12 order. It is submitted that considering the over all facts

and circumstances, this is a matter which has to be remanded to

the assessing authority to complete the assessment after

affording an opportunity of hearing to the petitioner.

4. Learned Government Pleader would submit with

reference to Ext. P12 order that the allegations of the petitioner

that the petitioner was not given an opportunity of hearing is

absolutely incorrect. It is pointed out that on two occasions the

petitioner was given opportunity to appear before the assessing

authority and raise all its contentions, but the petitioner failed to

do so. It is submitted that there is no jurisdictional error or

other defects in Ext.P12 order warranting exercise of jurisdiction W.P.(C) 13049/2018

of this Court under Article 226 of the Constitution of India at this

stage of the proceedings. It is submitted that the petitioner has

an effective remedy before the appellate authority against Ext.

P12. It is submitted that the petitioner is not entitled to an

order for remand as the petitioner had failed to avail the

opportunity granted to it before the assessing authority.

5. Having heard the learned counsel for the petitioner

and the learned Government Pleader, I am of the opinion that

the petitioner has not been able to point out any jurisdictional

error or violation of the principles of natural justice which would

enable this Court to interfere with Ext. P12, notwithstanding the

existence of an alternate remedy.

Therefore, it is for the petitioner to approach the

appellate authority by filing an appeal against Ext. P12 order.

To enable the petitioner to file an appeal together with a stay

petition, the period during which this petition was pending

before this court, namely, from 11.04.2018 till today, shall be

excluded from the period of limitation within which the appeal W.P.(C) 13049/2018

has to be filed against Ext.P12 order. If an appeal and a stay

petition are filed against Ext.P12 within a period of two weeks

from today, any demand pursuant to Ext.P12 shall not be

enforced against the petitioner till a decision is taken on the stay

petition to be filed by the petitioner.

Writ Petition is disposed of as above.

Sd/-

GOPINATH P.

JUDGE

sb W.P.(C) 13049/2018

APPENDIX OF WP(C) 13049/2018

PETITIONER EXHIBITS

EXHIBIT P1: COPY OF ASSESSMENT ORDER ISSUED BY THE COMMERCIAL TAX OFFICER, CHAVAKKAED FOR THE YEAR 2010-11

EXHIBIT P2: COPY OF THE ORDER ISSUED BY THE ASST.

COMMISSI9NER (APPEALS), THRISSUR FOR 2010-

EXHIBIT P2(A): COPY OF ORDER ISSUED BY THE ASST.

COMMISSIONER (APPEALS), THRISSUR FOR 2010-

EXHIBIT P3: COPY OF ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2010-11

EXHIBIT P4: COPY OF ORDER IN TA (VAT) NO.845/2012 ISSUED BY THE KERALA VALUE ADDED TAX APPELLATE TRIBUNAL, ERNAKULAM

EXHIBIT P5: COPY OF THE APPELLATE ORDER IN KVAT 3079/12 ISSUED BY THE DY. COMMISSIONER (APPEALS), ERNAKULAM FOR 2010-11

EXHIBIT P6: COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT

EXHIBIT P7: COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT

EXHIBIT P8: COPY OF NOTICE ISSUED BY THE 1ST RESPONDENT

EXHIBIT P9: COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT

EXHIBIT P10 COPY OF NOTICE ISSUED BY THE 1ST RESPONDENT

EXHIBIT P11: COPY OF THE LETTER SUBMITTED BY THE W.P.(C) 13049/2018

PETITIONER BEFORE THE 1ST RESPONDENT

EXHIBIT P12: COPY OF ORDER ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2010-11