Balasubrahmanyan Nabeesan vs Deputy Commissioner Of State Tax, ...
2023 Latest Caselaw 348 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                THE HONOURABLE MR. JUSTICE GOPINATH P.
    WEDNESDAY, THE 11TH DAY OF JANUARY 2023 / 21ST POUSHA, 1944
                        WP(C) NO. 27773 OF 2022
PETITIONER:

          BALASUBRAHMANYAN NABEESAN,
          AGED 62 YEARS,
          S/O. KESAVAN NAMBEESAN,
          PUSHPAKATH HOUSE,
          KUZHALMANNAM,
          KUZHALMANNAM - 678 624.

          BY ADVS.
          K.ANAND
          AMEER SALIM



RESPONDENTS:

    1     DEPUTY COMMISSIONER OF STATE TAX, PALAKKAD,
          REPRESENTED BY JOINT COMMISSIONER OF STATE TAX,
          1ST FLOOR, STATE GST COMPLEX,
          BEHIND CIVIL STATION, PALAKKAD - 678 001.

    2     STATE TAX OFFICER, (FORMERLY COMMERCIAL TAX OFFICER),
          STATE TAX OFFICE, ALATHUR
          STATE GST OFFICE, ALATHUR - 678 541.

    3     DEPUTY TAHSILDAR
          ALATHUR TALUK OFFICE,
          ALATHUR TALUK, ALATHUR - 678 541
          PALAKKAD

          BY ADV. THUSHARA JAMES (SR GP)




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
11.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 27773 OF 2022

                                           2


                                     JUDGMENT

The petitioner has approached this Court being aggrieved

by the fact that proceedings have been initiated against the

petitioner for recovery of tax payable by the petitioner under the

provisions of the Kerala Value Added Tax Act, 2003 for the period

from 2012 - 2015. It is the case of the petitioner that the

petitioner had no notice of the assessment proceedings and that

even the copy of the assessment order has not been

communicated to the petitioner.

2. A counter affidavit has been filed by the 2 nd

respondent, where it is pointed out that notices were issued to

the petitioner and the petitioner initially sought for an

adjournment. It is stated that thereafter the notices issued to the

petitioner were returned unclaimed and therefore, the petitioner

cannot claim that the assessment was completed without proper

notice. It is submitted that Section 88 of the Kerala Value Added

Tax Act provides that where notices issued to an assessee by

registered post or by courier service at the last known place of

residence / business, that would be sufficient service for the

purposes of completing proceedings under the Act. The learned

Government Pleader also points out that in respect of the WP(C) NO. 27773 OF 2022

assessment order for assessment year 2015-16, the petitioner

had actually sought for instalment. However, no such instalment

was paid by the petitioner.

3. The learned counsel appearing for the petitioner would

submit that the documents produced along with the counter

affidavit of the 2nd respondent relate only to one among the

assessment years in question and there is nothing to show that

such notices have been issued in respect of the other years as

well.

4. Having heard the learned counsel appearing for the

petitioner and the learned Senior Government Pleader appearing

for the respondents, I am of the view that prima facie it is difficult

to accept the case of the petitioner that the proceedings were

completed against the petitioner without issuing notice to the

petitioner. Exts.R2(a) R2(b) and R2(c) are prima facie sufficient to

indicate that the petitioner failed to cooperate with the

assessment after having received the notices. However, the 2 nd

respondent does not appear to have a case that the orders of

assessment in respect of the assessment years in question

namely, assessment years 2012-13, 2013-14, 2014-15 and 2015-

16 have actually been issued served on the petitioner. Since

there is nothing to show at present that the assessment orders WP(C) NO. 27773 OF 2022

have actually been served on the petitioner, for the aforesaid

assessment years, this writ petition will stand disposed of

directing the 2nd respondent to issue certified copies of the

assessment orders in respect of the assessment years mentioned

above on an application being made by the petitioner for the

same. Such applicaton shall be made within a period of one

week from the date of receipt of a certified copy of this judgment.

The petitioner shall file statutory appeal before the 1 st appellate

authority against the orders of assessment within a period of four

weeks from the date on which the copies of the assessment order

are issued to the petitioner in terms of the directions contained

above. If the petitioner files the statutory appeals within the time

granted above along with applications for stay, the revenue

recovery proceedings against the petitioner shall remain

suspended till a decision is taken by the 1 st appellate authority on

the stay petitions to be filed by the petitioner.

The writ petition is disposed of as above.

Sd/-

GOPINATH P.

JUDGE DK WP(C) NO. 27773 OF 2022

APPENDIX OF WP(C) 27773/2022

PETITIONER EXHIBITS

Exhibit p1 TRUE COPY OF THE DEMAND NOTICE DATED 05.07.2022 ISSUED BY THE 3RD RESPONDENT FOR THE PERIOD 2012 ISSUED U/S 7 OF THE REVENUE RECOVERY ACT

Exhibit P1(a) TRUE COPY DEMAND NOTICE DATED 05.07.2022 U/S 34 OF THE REVENUE RECOVERY ACT DATED 05.07.2022 FOR THE PERIOD 2012

ExhibitP2 TRUE COPY OF THE DEMAND NOTICE DATED 05.07.2022 ISSUED BY THE 3RD RESPONDENT FOR THE PERIOD 2013 ISSUED U/S 7 OF THE REVENUE RECOVERY ACT

Exhibit P2(a) TRUE COPY DEMAND NOTICE DATED 05.07.2022 U/S 34 OF THE REVENUE RECOVERY ACT DATED 05.07.2022 FOR THE PERIOD 2013

Exhibit P3 TRUE COPY OF THE DEMAND NOTICE DATED 05.07.2022 ISSUED BY THE 3RD RESPONDENT FOR THE PERIOD 2014 ISSUED U/S 7 OF THE REVENUE RECOVERY ACT

Exhibit P3(a) TRUE COPY DEMAND NOTICE DATED 05.07.2022 U/S 34 OF THE REVENUE RECOVERY ACT DATED 05.07.2022 FOR THE PERIOD 2014

Exhibit P4 TRUE COPY OF THE DEMAND NOTICE DATED 05.07.2022 ISSUED BY THE 3RD RESPONDENT FOR THE PERIOD 2015 ISSUED U/S 7 OF THE REVENUE RECOVERY ACT

Exhibit p4(a) TRUE COPY DEMAND NOTICE DATED 05.07.2022 U/S 34 OF THE REVENUE RECOVERY ACT DATED 05.07.2022 FOR THE PERIOD 2015

RESPONDENT EXHIBITS

Exhibit R2(a) The copy of the acknowledgement card picturing the proof of service of notice WP(C) NO. 27773 OF 2022

Exhibit R2(b) True copy of the said cover showing the endorsement "unclaimed" returned by the postal department

Exhibit R2(c) The copy of the said cover showing the endorsement "unclaimed" returned by the postal department