Kerala High Court
Appolo Granties vs State Of Kerala on 31 May, 2024
Author: P Gopinath
Bench: P Gopinath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
FRIDAY, THE 31ST DAY OF MAY 2024 / 10TH JYAISHTA, 1946
WP(C) NO. 14640 OF 2018
PETITIONER/S:
APPOLO GRANTIES
I/383 A, MANJAPA P.O., ANGAMALY, ERNAKULAM-683581,
REPRESENTED BY ITS MANAGING PATNER, K.V.CHAKOCHAN,AGED
70 YEARS, S/O K.C.VARKEY, KANAKKANMMAKUDI HOUSE,
IRINGOL P.O., PERUMBAVOOR, ERNAKULAM-683 545.
BY ADVS.
SRI.K.A.JALEEL
SRI.C.Y.VINOD KUMAR
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY SECRTARY TO GOVERNMENT,DEPARTMENT OF
TAXES, SOUTH BLOCK,SECRETARIAT, TRIVANDRUM-695 001.
2 COMMERCIAL TAX OFFICER
OFFICE OF THE COMMERCIAL TAX OFFICER,COMMERCIAL TAXES,
ANGAMALY, ERNAKULAMDISTRICT-683 572.
BY ADV GOVERNMENT PLEADER
OTHER PRESENT:
SRI. ARUN AJAY SHANKAR (GP)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
31.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P (C) No.14640/2018 -2-
JUDGMENT
The petitioner has approached this court challenging Exts.P7 to P11
orders for the assessment years 2011-12 to 15-16 issued under the provisions
of Section 25 (1) of the Kerala Value Added Tax Act, 2003 (the 2003 Act)
modifying the tax payable at compounded rates in respect of a metal crusher
unit operated by the petitioner. It is the case of the petitioner that the basis
for issuing the impugned orders is that following an inspection conducted the
audit party came to the conclusion that the petitioner had misreported the
number of machines installed at his premises. It is submitted that though the
petitioner filed objections to the notice issued to him prior to the issuance of
the impugned order, the impugned order is passed without further
opportunity of hearing. It is submitted that on the short ground the impugned
orders are liable to the set aside.
2. The learned Government Pleader would submit that the
contention taken on behalf of the petitioner that the petitioner was not given
a proper opportunity of hearing is absolutely incorrect. Reference is made in
this regard to paragraph 8 of the counter affidavit where it is stated that the
petitioner had failed to co-operate with the enquiry despite being given an
opportunity. He points out that the notice produced as Ext.R2 (a) was issued
to the petitioner on 28-04-2017. The learned Government Pleader points out
that initially the date fixed for filing reply and for personal hearing was
03-08-2017. It is submitted that at the request of the petitioner the same was
postponed to 10-08-2017. It is submitted that the petitioner appeared on
10-08-2017 and filed reply. It is also submitted that in the case of metal
crusher units compounding is granted on the capacity of the machines and by
misrepresenting of number of machines installed at the business premises of
the petitioner, the petitioner has caused revenue loss to the State.
3. The learned counsel for the petitioner in reply would submit that
though the reply of the petitioner was accepted on 10-08-2017 the impugned
order was issued without further opportunity of hearing. It is also pointed out
that Ext.R2 (a) is dated 28-04-2017 (even prior to the alleged inspection at
the premises of the petitioner). The learned counsel also submits that the
inspection which is relied on was not even carried out in his premises, but
carried out in some other premises having similar name.
Having heard the learned counsel for the petitioner, learned
Government Pleader and having regard to the facts and circumstances of the
case, I am of the opinion that the impugned orders are liable to be set aside. It
appears that though the petitioner appeared before the officer on 10-08-2017
and filed reply no further hearing was conducted in the matter. Therefore on
the short ground that the impugned orders are issued in violation of
principles of natural justice, the impugned orders are liable to be set aside.
Accordingly Exts.P7 to P11 orders are quashed and the matter stands remitted
to the file of the 2nd respondent who shall pass fresh orders in the matter after
affording an opportunity of hearing to the petitioner. It is open to the
petitioner to produce any materials he may wish to rely on before the 2 nd
respondent. The 2nd respondent shall endeavour to pass fresh orders as
directed above within a period of 3 months from the date of receipt of a
certified copy of this judgment. I make it clear that I have not expressed any
opinion on the merits of the claim raised by the petitioner.
Sd/-
GOPINATH P.
JUDGE
AMG
APPENDIX OF WP(C) 14640/2018
PETITIONER EXHIBITS
EXHIBTI P1: TRUE COPY OF THE NOTICE DATED 1.7.2017 ISSUED BY THE
2ND RESPONDENT FOR THE ASSESSMENT YEAR 2011-12.
EXHIBIT P2: TRUE COPY OF THE NOTICE DATED 1.7.2017 ISSUED BY THE
2ND RESPONDENT FOR THE ASSESSMENT YEAR 2012-13.
EXHIBIT P3: TRUE COPY OF THE NOTICE DATED 1.7.2017 ISSUED BY THE
2ND RESPONDENT FOR THE ASSESSMENT YEAR 2013-14.
EXHIBIT P4: TRUE COPY OF THE NOTICE DATED 1.7.2017 ISSUED BY TEH
2ND RESPONDENT FOR THE ASSESSMENT YEAR 2014-15.
EXHIBIT P5: TRUE COPY OF THE NOTICE DATED 1.7.17 ISSUED BY THE
2ND RESPONDENT FOR THE ASSESSMENT YEAR 2015-16.
EXHIBIT P6: TRUE COPY OF THE OBJECTION DATED 9.8.17 SUBMITTED BY
THE PETITIONER BEFORE THE 2ND RESPONDENT.
EXHIBIT P7: TRUE COPY OF THE ORDER NO.32150829701/2011-12 DATED
31.12.17 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P8: TRUE COPY OF THE ORDER NO.32150829701/2012-13 DATED
31.12.17 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P9: TRUE COPY OF THE ORDER NO.32150829701/2013-14 DATED
31.12.17 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P10: TRUE COPY OF THE ORDER NO.32150829701/2014-15 DATED
31.12.17 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P11: TRUE COPY OF THE ORDER NO.32150829701/2015-16 DATED
31.12.17 ISSUED BY THE 2ND RESPONDENT.
