Viju V.K vs The Asst.Commissioner (Works ...
2022 Latest Caselaw 7227 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MR. JUSTICE GOPINATH P.
        THURSDAY, THE 23RD DAY OF JUNE 2022 / 2ND ASHADHA, 1944
                        WP(C) NO. 16364 OF 2022
PETITIONER/S:

            VIJU V.K.
            AGED 53 YEARS
            VANACHIRACKAL HOUSE, THENGODE P.O., ERNAKULAM, KOCHI -
            682 030.
            BY ADVS.
            HARISANKAR V. MENON
            MEERA V.MENON
            K.KRISHNA


RESPONDENT/S:

    1       THE ASST.COMMISSIONER (WC)
            SGST DEPARTMENT, CLAS TOWER, OLD RAILWAY STATION ROAD,
            ERNAKULAM, KOCHI - 682 018.
    2       THE STATE TAX OFFICER
            WORKS CONTRACT, STATE GOODS & SERVICES TAX DEPARTMENT,
            ERNAKULAM, KOCHI - 682 018.



            ADV. DR. THUSHARA JAMES (SR. GP)


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 16364 OF 2022               2



                               JUDGMENT

Petitioner has approached this Court, challenging Ext.P6

order under Section 66 of the Kerala Value Added Tax Act

(hereinafter referred to as 'the KVAT Act'), suo motu rectifying

Ext.P5 order of assessment to the disadvantage of the petitioner,

without affording an opportunity of hearing to the petitioner.

2. Learned counsel appearing for the petitioner submits

that Ext.P5 was an order passed by the Assessing Authority

pursuant to a remand by the First Appellate Authority. It is

submitted that at the stage of passing Ext.P5 order, the

petitioner was given an opportunity of hearing and the petitioner

had also submitted its reply. It is submitted that after passing

Ext.P5 order, the Assessing Officer has suo moto revised the said

order by issuing Ext.P6 and increasing the tax demand from that

demanded in Ext.P5, without affording any opportunity of hearing

to the petitioner. It is submitted that this is contrary to the

provisions of the Statute as contained in Section 66 of the KVAT

Act.

3. Learned Government Pleader points out that following

the remand, the Assessing Officer had provided an opportunity of

hearing to the petitioner and Ext.P6 cannot be strictly said to be

an order to the disadvantage of the petitioner. It is submitted

that the petitioner has an effective alternative remedy and there

is no reason for this Court to interfere with Ext.P6 under Article

226 of the Constitution of India.

4. Having heard the learned counsel appearing for the

petitioner and the learned Senior Government Pleader and

having regard to the fact that Ext.P6 appears to have been issued

without affording an opportunity of hearing to the petitioner or

without issuing any notice to the petitioner, I am of the view that

Ext.P6 is liable to be set aside. It is settled law that where an

order is passed in violation of the principles of natural justice, the

availability of an alternative remedy does not bar this Court from

interfering with the order in question. It cannot be disputed that

Ext.P6 is an order to the disadvantage of the petitioner as the tax

demand has increased substantially from what was demanded in

Ext.P5. Therefore, this writ petition is allowed. Ext.P6 is

quashed with a direction to the 1 st respondent to pass such

orders as he deems fit in exercise of the jurisdiction under

Section 66 of the KVAT Act, after affording an opportunity of

hearing to the petitioner. The petitioner shall appear before the

1st respondent at 11.00 am on 01.07.2022 and thereafter, the

proceedings shall be completed in accordance with law, within a

period of one month from the date of receipt of a certified copy of

this judgment.

The writ petition is allowed as above.

sd/-

GOPINATH P.

JUDGE ajt

APPENDIX OF WP(C) 16364/2022

PETITIONER EXHIBITS Exhibit P1 COPY OF NOTICE ISSUED BY THE 1ST RESPONDENT. Exhibit P2 COPY OF REPLY FILED BY THE PETITIONER. Exhibit P3 COPY OF ORDER ISSUED BY 1ST RESPONDENT FOR THE YEAR 2012-13.

Exhibit P4 COPY OF ORDER IN KVATA NO.737/2018 OF THE DY.

COMMISSIONER (APPEALS)-IV, ERNAKULAM.

Exhibit P5 COPY OF ORDER ISSUED BY THE 2ND RESPONDENT. Exhibit P6 COPY OF ORDER ISSUED BY THE 2ND RESPONDENT.