Dr. Ashley Thomas Jacob vs State Of Kerala
2024 Latest Caselaw 26099 Ker

Kerala High Court

Dr. Ashley Thomas Jacob vs State Of Kerala on 3 September, 2024

                                                      2024:KER:67241

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

       THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON

TUESDAY, THE 3 RD DAY OF SEPTEMBER 2024 / 12TH BHADRA, 1946

                       WP(C) NO. 26989 OF 2024


PETITIONER/S:

          DR. ASHLEY THOMAS JACOB
          AGED 51 YEARS
          MULAMOOTTIL EYE HOSPITAL, MULAMOOTTIL,
          KOZHENCHERRY, PATHANAMTHITTA, PIN - 689641

          BY ADVS.
          RAJA KANNAN
          M.GOPIKRISHNAN NAMBIAR
          K.JOHN MATHAI
          JOSON MANAVALAN
          KURYAN THOMAS
          PAULOSE C. ABRAHAM
RESPONDENT/S:

   1      STATE OF KERALA
          REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
          TAXES DEPARTMENT, SECRETARIAT,
          THIRUVANANTHAPURAM, PIN - 695001

   2      THE STATE TAX OFFICER
          TAXPAYER SERVICES CIRCLE, KERALA STATE GST
          DEPARTMENT, PATHANAMTHITTA, PIN - 689645
OTHER PRESENT:
         SRI.SAYD.M.THANGAL

       THIS     WRIT        PETITION      (CIVIL)   HAVING       BEEN
FINALLY       HEARD    ON    03.09.2024,     THE    COURT   ON   THE
SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.26989 of 2924




                                                   2024:KER:67241
                                -2-



                            JUDGMENT

Dated this the 03rd day of September, 2024

The petitioner, an assessee under the provisions of the

Central Goods and Services Tax Act, 2017 and Kerala State

Goods and Services Tax Act, 2017 ('the Act' for short), has

filed this writ petition challenging Ext.P6 assessment order and

P7 summary of assessment order issued by the second

respondent herein, essentially contending that the said orders

have been issued in violation of the principles of natural

justice, specifically provided under the provisions of Section

75(4) of the Act.

2. The short facts that arise for consideration in the

writ petition are as follows;

The petitioner had filed his return with respect to the

assessment year 2018-19, satisfying the tax due thereunder.

The second respondent issued Ext.P1 show-cause notice under

Section 73(1) dated 21.12.2023, making various proposals. In

2024:KER:67241

reply to the above, the petitioner submitted Ext.P2 reply dated

19.01.2024 before the second respondent "online", as

evidenced by Ext.P3 acknowledgment. Ext.P2 reply is followed

with series of e-mail communications between the petitioner

and the second respondent as evidenced by Ext.P4. However,

the second respondent issued Ext.P6 assessment order dated

25.04.2024, ex parte. In the said assessment order, the

assessing authority has stated that though an opportunity for

personal hearing was extended to the petitioner on

16.04.2024, there was no appearance and on account of the

above, the assessment has been finalised ex parte.

3. The petitioner, on receipt of Ext.P6, submitted

Ext.P11 application for rectification under Section 161 of the

Act, pointing out that insofar as the assessment order

maintains that there was no appearance from the side of the

petitioner in spite of service of a notice, there are errors

apparent on the face of the record. Petitioner points out that in

2024:KER:67241

spite of submitting the above application at Ext.P11 on

18.06.2024, there was no reply from the side of the second

respondent till date.

4. It is in the above circumstances that the petitioner

has filed the captioned writ petition with the following prayers;

"i. call for the records leading up to Ext. P6 assessment order and Ext.P7 summary order (DRC-07) passed by the 2nd respondent, and quash the same by the issuance of a writ of certiorari, or such other writ, order or direction;

ii. Issue a writ of mandamus, or such other order, writ or direction, commanding the 2nd respondent to pass fresh order of assessment for the year 2018-19, after verifying the reply filed, the books of accounts and connected records, and after affording an opportunity of hearing to the petitioner, and further, in compliance with the directions of this Hon'ble Court;

iii. declare that Ext.P6 order of assessment is ultra vires Sections 75(4) of the CGST/SGST Acts, 2017, and therefore, legally unsustainable."

5. I have heard Sri.Raja Kannan, learned Counsel for

2024:KER:67241

the petitioner and Sri.Sayed M. Thangal, learned Government

for the respondents.

6. Sri.Raja Kannan would submit as under;

(i) The order of assessment at Ext.P6 passed

without following the mandate under Section 75(4)

cannot be sustained.

(ii) He also invites the attention of this Court to

Ext.P1 notice wherein the date of personal hearing

is noticed as 10.01.2024, when the petitioner was

directed to file an objection to the show cause

notice by 20.01.2024. He points out that since the

date of personal hearing was fixed at an anterior

date with reference to the date by which the reply is

to be presented, the date of personal hearing fixed

was not proper.

(iii) He points out that since the date of personal

hearing was an anterior date as above, when the

2024:KER:67241

petitioner submitted the reply at Ext.P2 on

19.01.2024, a fresh notice ought to have been

issued and served on the petitioner prior to

completion of assessment.

(iv) He relies upon the judgment of the Apex Court

in Tin Box Company, New Delhi v. CIT, New

Delhi [(2001) 9 SCC 725] to contend that the

principles of natural justice is to be considered with

reference to the completion of the assessment, even

if there is a remedy of appeal under the statutes

against the assessment order.

7. Sri.Sayed M.Thangal, learned Government Pleader

would submit as under;

(i) The petitioner was aware of the assessment

proceedings initiated even prior to issue of the

show-cause notice at Exts.P1 and P2.

(ii) The petitioner was granted an opportunity for

2024:KER:67241

personal hearing on 05.04.2021 and 31.10.2023

prior to the issue of Ext.P2 and therefore, the

contention regarding the violation of the principles

of natural justice is not proper.

8. I have considered the rival submissions as well as

the connected records.

9. The admitted facts are that Ext.P2 show-cause

notice was served on the petitioner directing him to file

objections by 20.01.2024. The date for personal hearing was

fixed on 10.01.2024 -anterior date.

10. The petitioner filed the reply to the show-cause

notice on 19.01.2024 as evidenced by Ext.P3. Therefore, the

petitioner was justified in entertaining the belief that he would

be served with a fresh notice for personal hearing in the

matter. The petitioner points out that the statement in the

assessment order that a notice was issued fixing the date of

personal hearing as 16.04.2024 is not correct insofar as no

2024:KER:67241

such notice was never served on the petitioner. Perusal of the

assessment order at Ext.P6 also makes it clear that though

there is such a stand taken in the order that the personal

hearing was fixed on 16.04.2024, the order is silent as

regards the date on which the said intimation fixing hearing on

16.04.2024 was served on the petitioner. In such

circumstances, it can only be concluded that no such notice

was served on the petitioner.

11. The provisions of Section 75 (4) specifically

provided that prior to completion of assessment, an

opportunity for hearing is to be extended, when the assessee

makes a specific request in that regard in writing before the

assessing authority. In the case at hand, the fact that such a

request is made by the petitioner is not in dispute.

Furthermore, the show cause notice which culminated in the

assessment order has created a demand in excess of

Rs.30,00,000/-. Section 75(4) mandates an opportunity of

2024:KER:67241

hearing when any adverse decision is contemplated against an

assessee. Insofar as a demand in excess of Rs.30,00,000/- is

created against the petitioner, it was incumbent on the part of

the second respondent to have provided the petitioner a

reasonable opportunity for personal hearing. Insofar as there is

no evidence to prove that the notice fixing the hearing on

16.04.2024 was actually served on the petitioner, I find no

reason to sustain the order at Ext.P6.

Resultantly, this writ petition is allowed, by quashing

Ext.P6 assessment order issued by the second respondent

herein. The second respondent would issue a fresh notice,

intimating the petitioner as regards the opportunity for

personal hearing, under the provisions of Section 75(4).

sd/-

HARISANKAR V. MENON JUDGE Scl/

2024:KER:67241

APPENDIX OF WP(C) 26989/2024

PETITIONER EXHIBITS

Exhibit P1 THE TRUE COPY OF FORM GST DRC-01 (SUMMARY OF SHOW CAUSE NOTICE) DATED 21.12.2023 ALONG WITH ITS ANNEXURE (NOTICE IN DETAIL) DATED 21.12.2023 ISSUED BY THE 2ND RESPONDENT FOR THE TAX PERIOD 2018-19

Exhibit P2 THE TRUE COPY OF THE REPLY DATED 19.01.2024 (WITHOUT ANNEXURES) FILED BY THE PETITIONER IN RESPONSE TO EXT. P1 NOTICE

Exhibit P3 THE TRUE COPY OF THE E-

ACKNOWLEDGMENT DATED 19.01.2024 GENERATED AT THE TIME OF FILING EXT. P2 REPLY IN GST PORTAL

Exhibit P4 THE TRUE COPY OF THE RELEVANT EXTRACT OF THE E-MAIL CORRESPONDENCES DATED 10.01.2024 AND 05.01.2021 BETWEEN THE PETITIONER AND 2ND RESPONDENT

Exhibit P5 THE TRUE COPY OF THE EXTRACT OF SECTION 75 OF THE CGST/SGST ACT, 2017 (DATED NIL)

Exhibit P6 THE TRUE COPY OF THE ASSESSMENT ORDER DATED 25.04.2024 ISSUED UNDER SECTION 73(1) OF THE CGST/SGST ACT, 2017, PERTAINING TO THE TAX PERIOD 2018-19

2024:KER:67241

Exhibit P7 THE TRUE COPY OF FORM GST DRC-07 (SUMMARY OF ASSESSMENT ORDER) DATED 26.04.2024 ISSUED ALONG WITH EXT.P6 ORDER

Exhibit P8 THE TRUE COPY OF THE EXTRACT OF SECTION 169 OF THE CGST/SGST ACT, 2017 (DATED NIL)

Exhibit P9 THE TRUE COPY OF THE SCREEN-SHOTS DATED NIL OBTAINED FROM THE GST PORTAL

Exhibit P10 THE TRUE COPY OF THE EXTRACT OF SECTION 161 OF THE CGST/SGST ACT, 2017 (DATED NIL)

Exhibit P11 THE TRUE COPY OF THE PETITION FOR RECTIFICATION DATED 18.06.2024 E-

FILED BEFORE THE 2ND RESPONDENT, UNDER SECTION 161 OF THE CGST/SGST ACT, 2017

Exhibit P12 THE TRUE COPY OF THE E-

ACKNOWLEDGEMENT DATED 26.06.2024 GENERATED AT THE TIME OF E-FILING OF RECTIFICATION PETITION IN THE GST PORTAL