ABDUL RASHEED V. THE AGRICULTURAL INCOME TAX AND COMMERCIAL TAX OFFICER

WP(C)/39288/2017

AI Insights

The case involves Abdul Rasheed, the proprietor of M.M. Agencies, who is challenging the assessment orders issued under the Kerala Value Added Tax Act for the years 2011-12, 2012-13, and 2013-14. The petitioner contended that the orders were vitiated due to non-compliance with the principles of natural justice. The first respondent, the Agricultural Income Tax and Commercial Tax Officer, defended the orders by stating that the petitioner was duly notified and had acknowledged receipt of the notices. The court found that the issues raised by the petitioner, particularly those concerning the principles of natural justice, were suitable for resolution by the appellate authority rather than through extraordinary writ jurisdiction.

• Counselvise Citation: [2018] 140 COUNSELVISE.COM (IT) 755367 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 16-01-2018
• Assessment Year: misc
• Laws Referred To: Kerala Value Added Tax Act
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: V K SHAMSUDHEEN
• Assessee Lawyers: V NARASIMHAM; P H RIYAS; RAGAM
• Keywords: Assessment Order; Escaped turnover; Writ petition; Non-compliance of the principles of natural justice
• Section: 25

Judgement Text

" IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR TUESDAY, THE 16TH DAY OF JANUARY 2018 / 26TH POUSHA, 1939 WP(C).No. 39288 of 2017 PETITIONER ABDUL RASHEED,PROPRIETOR, M.M.AGENCIES,MANNANCHERRY.P.O,ALAPPUZHA-688538. BY ADVS.SRI.V.DEVANANDA NARASIMHAM SRI.P.H.RIYAS SMT.RAGAM.K.P. RESPONDENTS: 1. THE AGRICULTURAL INCOME TAX AND COMMERCIAL TAX OFFICER, CIVIL STATION ANNEX,ALAPPUZHA-688011. 2. THE DEPUTY TAHSILDAR(RR), AMBALAPPUZHA TALUK OFFICE,ALAPPUZHA-68001. BY ADV. GOVERNMENT PLEADER:SRI.V.K.SHAMSUDHEEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 39288 of 2017 (I) APPENDIX PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF PASSPORT NO.G4925709 DATED 18.10.2017 ISSUED BY THE REGIONAL PASSPORT OFFICE COCHIN TO THE PETITIONER EXHIBIT P2 TRUE COPY OF ANNUAL RETURN FOR THE YEAR 2011-12 DATED 21.05.2012 E-FILED BEFORE 1ST RESPONDENT BY THE PETITIONER EXHIBIT P3 TRUE COPY OF ANNUAL RETURN FOR THE YEAR 2012-13 DATED 19.06.2013 E-FILED BEFORE 1ST RESPONDENT BY PETITIONER EXHIBIT P4 TRUE COPY OF ANNUAL RETURN FOR THE YEAR 2013-14 DATED 05.07.2014 E-FILED BEFORE 1ST RESPONDENT BY PETITIONER EXHIBIT P5 TRUE COPY OF THE SCREEN SHOT INDICATING DE-REGISTRATION STATUS OF THE PETITIONER AVAILABLE IN THE KERALA VALUE ADDED TAX INFORMATION SYSTEM 1904/2011-12 DATED 31/05/2016 DEMANDING TAX AND INTEREST ISSUED BY 1ST RESPONDENT TO THE PETITIONER EXHIBIT P6 TRUE COPY OF THE CERTIFIED COPY OF ASSESSMENT ORDER NO.32041381904/2011-12 DATED 31.05.2016 DEMANDING TAX AND INTEREST ISSUED BY 1ST RESPONDENT TO THE PETITIONER EXHIBIT P7 TRUE COPY OF THE CERTIFIED COPY OF ASSESSMENT ORDER NO.32041381904/2012-13 DATED 31.05.2016 DEMANDING TAX AND INTEREST ISSUED BY 1ST RESPONDENT TO THE PETITIONER. EXHIBIT P8 TRUE COPY OF THE CERTIFIED COPY OF ASSESSMENT ORDER NO.32041381904/2013-14 DATED 31.05.2016 DEMANDING TAX AND INTEREST ISSUED BY 1ST RESPONDENT TO THE PETITIONER. EXHIBIT P9 TRUE COPY OF RRC NO.2017/801/04 DATED 22.06.2017 ISSUED ON 05-10-2017 BY THE 2ND RESPONDENT TO THE PETITIONER EXHIBIT P10 TRUE COPY OF RRC NO.2017/803/04 DATED 22.06.2017 ISSUED ON 05-10-2017 BY THE 2ND RESPONDENT TO THE PETITIONER EXHIBIT P11 TRUE COPY OF RRC NO.2017/805/04 DATED 22.06.2017 ISSUED ON 05.10.2017 BY THE 2ND RESPONDENT TO THE PETITIONER. RESPONDENT'S EXHIBITS:NIL //TRUE COPY// PA TO JUDGE rsr P.B.SURESH KUMAR, J. -------------------------------------------- W.P.(C).No.39288 of 2017 --------------------------------------------------------------- Dated this the 16th day of January, 2018 J U D G M E N T Petitioner is an assessee under the Kerala Value Added T ax Act (the Act) on the rolls of the first respondent. The escaped turn over of the petitioner for the years 2011- 12, 2012-13 and 2013-14 has been assessed under Section 25 of the Act, in terms of Exts.P6, P7 and P8 orders. Exts.P6, P7 and P8 orders are under challenge in the writ petition. The challenge against the said orders is mainly on the ground that the same are vitiated for non- compliance of the principles of natural justice. 2. A statement has been filed on behalf of the first respondent. In the statement, among others, it is stated by the first respondent that notices provided for W.P.(c).No.39288 of 2017 : 2 : under Section 25(1) of the Act was served on the petitioner by registered post and the same has been acknowledged by the petitioner. Ext.R1(a) acknowledgment card has been produced to show that the petitioner has received the notice issued to him under Section 25(1) of the Act. It is also stated that in response to the said notices, the petitioner sought time for filing objections. The letter sent by the petitioner, in response to the notices, is also produced along with the statement as Annexure R1(b). It is further stated in the statement that the petitioner has not done anything in furtherance to the request made by him. It is stated that the impugned orders have been passed in the circumstances. It is also stated that thereafter the copies of the impugned orders have been forwarded to the petitioner. It is stated that the postal article containing the impugned orders addressed to the petitioner was returned by the postal authorities with the endorsement 'shop abolished'. Ext.R1(c) is the copy of the postal cover. 3. Heard the learned counsel for the petitioner as also the learned Government Pleader. W.P.(c).No.39288 of 2017 : 3 : 4. The learned counsel for the petitioner contends that the petitioner has not received any notice at all. According to the learned counsel, notices have been received by somebody else on his behalf and he cannot be made responsible for the same. It is also stated by the learned counsel for the petitioner that Ext.R1(b) is not a reply sent by him. 5. The impugned orders are appealable under the provisions of the Act. True, in exceptional cases, if it is found that orders are vitiated for non-compliance of the principles of natural justice, this Court may exercise the extraordinary jurisdiction to entertain writ petitions against such orders, even when the parties have adequate and efficacious alternative remedies. But that does not mean that in every case where the party alleges that the order is vitiated for non compliance of principles of natural justice, this court shall exercise jurisdiction under Article 226 of the Constitution. The question as to whether the order is vitiated for non compliance of principles of natural justice is a question that could be examined by the appellate authority W.P.(c).No.39288 of 2017 : 4 : as well, especially where factual issues need to be resolved for the same. As noted above, factual issues need to be resolved for the purpose of considering the contention of the petitioner that the impugned orders are vitiated for non compliance of the principles of natural justice. In the circumstances, I am not inclined to entertain this writ petition challenging the impugned orders, in exercise of the discretionary jurisdiction of this Court under Article 226 of the Constitution. In the said view of the matter, the writ petition is dismissed, without prejudice to the right of the petitioner to prefer appeals challenging the impugned orders. In the peculiar facts and circumstances of this case, it is also directed that if the petitioner prefers appeals challenging the impugned orders before the appellate authority, the same shall be treated as filed within time. Sd/- P.B.SURESH KUMAR JUDGE rsr "