Atlas Gold Township(India)Pvt ... vs The State Of Kerala
2023 Latest Caselaw 3137 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

        THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

                                 &

              THE HONOURABLE MR.JUSTICE VIJU ABRAHAM

    THURSDAY, THE 23RD DAY OF MARCH 2023 / 2ND CHAITHRA, 1945

                        WA NO. 631 OF 2023
AGAINST THE JUDGMENT DATED 19.07.2022 IN WP(C) 18357/2018 OF HIGH
                          COURT OF KERALA

APPELLANT/WRIT PETITIONER:

           ATLAS GOLD TOWNSHIP(INDIA)PVT LTD, AGED 43 YEARS
           REGD.OFFICE XI/305H, NEAR FEDERAL BANK, OPP COCHIN
           INTERNATIONAL AIRPORT, VAPPALASSERY, NEDUMBASSERY,
           ANGAMALLY, KERALA- 683572 REPRESENTED BY ITS GENERAL
           MANAGER JOSE VARGHESE, PIN - 683572


           BY ADVS.SRI.K.P.PRADEEP
           SRI.SANAND RAMAKRISHNAN
           SRI.HAREESH M.R.
           SRI.T.T.BIJU
           SRI.T.THASMI
           SRI.M.J.ANOOPA
           SRI.SANU S MALAKEEL

RESPONDENTS/RESPONDENTS:

    1     THE STATE OF KERALA
          REPRESENTED BY ITS SECRETARY(TAXES), GOVERNMENT
          SECRETARIATE THIRUVANANTHAPURAM, PIN - 695001


    2     ASSISTANT COMMISSIONER (WORKS CONTRACT), OFFICE OF THE
          DEPUTY COMMISSIONER, STATE GOODS AND SERVICE TAX
          DEPARTMENT, MATTANCHERY, ERNAKULAM, PIN - 682002


    3     COMMISSIONER OF KERALA STATE GST
          KERALA STATE GST DEPARTMENT TAX TOWERS, KILLIPALAM,
          KARAMANA P.O, THIRUVANANTHAPURAM, PIN - 695002


    4     GOODS AND SERVICE TAX COUNCIL
          GOVERNMENT OF INDIA OFFICE OF THE GST COUNCIL
          SECRETARIAT 5TH FLOOR, TOWER II, JEEVAN BHART BUILDING,
          JANPATH ROAD, CONNAUGHT PLACE, NEW DELHI- 110001
 W.A.No.631 of 2023               2


           REPRESENTED BY ITS ADDITIONAL SECRETARY, PIN - 110001


           BY ADV GOVERNMENT PLEADER SMT. M.M JASMINE



      THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
23.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A.No.631 of 2023                    3




                               JUDGMENT

A.K.Jayasankaran Nambiar, J.

The appellant herein had filed the Writ Petition impugning

Exts.P1 to P4 ex-parte assessment orders passed under the Kerala

Value Added Tax Act (hereinafter referred to as 'the KVAT Act') for the

assessment years 2013-2014 to 2016-2017. While the assessment

orders were passed without affording a reasonable opportunity to the

appellant company, the appellant chose to challenge the said

assessment orders not only on the ground of violation of the principles

of natural justice but also on the larger question as to whether the

provisions of the KVAT Act would apply to sustain the assessment in

view of the Constitution (One Hundred and First Amendment) Act,

2016, which had introduced a new regime of tax on the supply of goods

and services. When the matter came up for hearing before a learned

Single Judge, the learned Single Judge relied on the decision of the

Division Bench of this Court in Sheen Golden Jewels (India) Pvt Ltd.

v. State Tax Officer (18)-1, Investigation Branch,

Thiruvananthapuram, and others [2019 KHC 205) that had

repelled the challenge against the Constitution (One Hundred and First

Amendment) Act, 2016 raised by other assessees similarly placed as the

appellant. Thereafter, while considering the challenge against the

impugned assessment orders, the learned Single Judge relegated the

appellant to its alternate appellate remedy under the KVAT Act for an

adjudication of the issue on merits.

2. The appellant later came across a judgment of another learned

Single Judge in WP(C).No.21798 of 2021 pertaining to a sister company

where the learned Judge had considered the argument as regards an

ex-parte assessment done against the assessee in that case and had set

aside the said assessment and remitted the matter back to the

assessing authority for a fresh consideration on merits after finding that

the earlier assessment was vitiated by a non-compliance with the rules

of natural justice. The appellant, therefore, moved a Review Petition

before the learned Single Judge pointing out the sequence of events

that led to a quashing of the orders of assessment in respect of the

sister company of the appellant and praying for a similar direction with

regard to the assessment orders that were impugned in the Writ

Petition. The learned Single Judge, however, dismissed the Review

Petition after finding no reason to review her earlier judgment in the

Writ Petition.

3. In the Writ Appeal before us, the appellant does not challenge

the findings of the learned Single Judge as regards the validity of the

assessment orders in the wake of the constitutional amendment. The

limited prayer at this stage is for a direction similar to the one that was

issued in favour of the sister company, whereby another learned Single

Judge had set aside the impugned assessment orders that were passed

without hearing the assessee and directed the Assessing Officer to re-

do the assessment afresh within a time frame.

4. On a consideration of the submission of the learned counsel for

the appellant, we find that it is a fact that the judgment of the learned

Single Judge in WP(C).No.21798 of 2021 pertained to a sister company

of the appellant that was functioning with the same management. It

follows, therefore, that the difficulties that were faced by the said sister

company were identical to those faced by the appellant as narrated in

the statement of facts in the Writ Appeal. Taking note of the said

circumstances and finding the reasons for non-appearance of the

appellant before the Assessing Officer in response to the notice for

hearing to be genuine, we feel that a similar treatment, as extended to

the petitioner in WP(C).No.21798 of 2021, can be extended to the

appellant herein as well. We, therefore, set aside the impugned

judgment of the learned Single Judge in the Writ Petition, as also the

order in the Review Petition, to the limited extent that it does not set

aside the assessment orders impugned in the Writ Petition. We direct

the assessing authority to pass fresh orders of assessment in relation to

the appellant for the assessment years 2013-2014, 2014-2015, 2015-

2016, 2016-2017, respectively, within a period of three months from the

date of receipt of a copy of this judgment. To enable the Assessing

Authority to do so, we direct the appellant to appear for a personal

hearing before the assessing authority on 17.04.2023. It is made clear

that, we have not interfered with that portion of the judgment of the

learned Single Judge in the Writ Petition, or the order of the learned

single Judge in the Review Petition, that rejects the challenge based on

the Constitution (One Hundred and First Amendment) Act, 2016 in

relation to the appellant herein.

The Writ Appeal is disposed as above.

Sd/-

A.K.JAYASANKARAN NAMBIAR JUDGE

Sd/-

VIJU ABRAHAM JUDGE

mns

APPENDIX OF WA 631/2023

PETITIONER ANNEXURES

Annexure A1 TRUE COPY OF THE JUDGMENT IN WPC NO 21798 OF 2021 DATED 08-11-2021

Annexure A2 TRUE COPY OF THE ORDER IN RP NO 143 OF 2023 DATED 22-02-2023