BASIL N PAUL V. THE COMMERCIAL TAX OFFICER

WP(C)/850/2012

AI Insights

The case involves Basil N Paul, the proprietor of M/S Plaza, who challenged the assessment order passed by the Commercial Tax Officer, which was based on a remand from the appellate authority. The appellate authority had set aside the original assessment order and directed a fresh assessment after rechecking and re-examination, particularly concerning the input tax credit claims. The petitioner argued that the final assessment order violated the directions of the appellate authority and the principles of natural justice, as he was not given adequate opportunity to present his case after requesting additional time, which had been accepted by the authority but not properly acknowledged in the final order.

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 694033 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 31-01-2012
• Assessment Year: misc
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: SOBHA EAPPEN
• Assessee Lawyers: DALE KURIAN
• Keywords: Assessment Order; Input tax credit; Natural Justice; Penalty order

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC TUESDAY, THE 31ST DAY OF JANUARY 2012/11TH MAGHA,1933 WPC.No. 850 of 2012 (E) ------------------------ PETITIONER ---------- BASIL N PAUL PROPRIETOR,M/S.PLAZA, OMBALAYIL BLDG, KOLENCHERY, PIN- 682 311 BY ADV. SRI.DALE P.KURIAN RESPONDENTS ----------- 1. THE COMMERCIAL TAX OFFICER(WORKS CONTRACT), COMMERCIAL TAXES OFFICE,MATTANCHERRY, KOCHI 682 002. 2. THE INTELLIGENCE OFFICER(IB), DEPARTMENT OF COMMERCIAL TAXES, MATTANCHERRY,STATIONED AT MINI CIVIL STATION, ALUVA - 683 108 3. THE DY.COMMISSIONER(APPEALS), COMMERCIAL TAXES, ERNAKULAM,KOCHI 682 016 4. THE COMMISSIONER OF COMMERCIAL TAXES, VIKAS BHAVAN,OPP.MUSEUM,PALAYAM, THIRUVANANTHAPURAM 695 033 5. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO TAXES DEPARTMENT GOVERNMENT SECRETARIAT, STATUE JUNCTION, THIRUVANANTHAPURAM 695 001 BY GOVERNMENT PLEADER SOBHA ANAMMA EAPPEN (SR) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MJL WPC NO:850/2012 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE ASSESSMENT ORDER DATED 10.3.2008 EXT.P2 : COPY OF MEMORANDUM OF APPEAL WITH GROUNDS DATED 16.6.2008 EXT.P3 : COPY OF THE APPELLATE ORDER DATED 15.7.2008 EXT.P4 : COPY OF THE ASSESSMENT ORDER DATED 8.12.2011 EXT.P5 : COPY OF THE DEMAND NOTICE DATED 8.12.2011 EXT.P6 : COPY OF THE INCOME TAX RETURN (SARAL) DATED 28.07.2006 EXT.P6(a) : COPY OF COMPUTATION STATEMENT FOR 2005-06 DATED 28.07.2006 EXT.P6(b) : COPY OF THE P&L ACCOUNT FOR 2005-06 DATED 28.07.2006 EXT.P6(c) : COPY OF THE BALANCE SHEET FOR 2005-06 DATED 28.07.2006 EXT.P7 : COPY OF THE REVISED VAT RETURN DATED 09.03.2008 EXT.P8 : COPY OF THE INCOME TAX RETURN OF M/S.P PADMARAJN, AMBA NIVAS, THEVARA, KOCHI FOR THE ASSESSMENT YEAR 2006-07 EXT.P8(a) : COPY OF THE COMPUTATION STATEMENT OF P PADAMARAJN, AMAB NIVAS, THEVARA, KOCHI FOR TH ASSESSMENT YEAR 2006-07 EXT.P8(b) : COPY OF THE P&L ACCOUNT OF P PADAMARAJN, AMBA NIVAS, THEVARA, KOCHI FOR THE ASSESSMENT YEAR 2006-07 EXT.P8(C) : COPY OF THE BALANCE SHEET OF P PADMARAJAN, AMBA NIVAS, THEVARA, KOCHI FOR THE ASSESSMENT YEAR 2006-07 MJL WPCNO:850/2012 EXT.P9 : COPY OF THE VAT RETURN WITH COMPUTATION FOR FY 2005-06 OF P PADMARAJAN, AMBA NIVAS, THEVARA, KOCHI DATED 31.10.2006 EXT.P10 : COPY OF THE NOTICE DATED 4-08-2011 BY THE 1ST RESPONDENT EXT.P11 COPY OF THE OF THE NOTICE DATED 18-11-2011 BY THE 1ST RSPONDENT EXT.P12 : COPY OF LETTER DATED 1-12-2011 BY THE STATUATORY AUDITOR OF THE PETITIONER SRI T.S. RAMASWAMY ERNAKULAM EXT.P13 : COPY OF THE LETTER DATED 13-12-201 BY THE PETITIONER EXT.P14 : COPY OF THE PENALTY ORDER DATED 24-3-2008 BY THE INTELLIGENCE OFFICER(IB) EXT.P15 : COPY OF THE LIST OF PURCHASES ELIGIBLE FOR INPUT TAX CREDIT AS SUBMITTED BY THE PETITIONER BEFORE THE INTELLIGENCE OCCICER (IB) DURING PENALTY PREOCEEDINGS. RESPONDENTS' EXHIBITS: NIL /TRUE COPY/ P A TO JUDGE MJL ANTONY DOMINIC, J ....................................................... W.P.(C).850/2012 .............................................. Dated this the 31st day of January, 2012 JUDGMENT Heard the learned counsel for the petitioner and the learned Government Pleader appearing for the respondents. 2. Ext.P3 is an order passed by the third respondent on Ext.P2 appeal by which Ext.P1 order of assessment was set aside and the matter was remitted back to the first respondent with the following directions:- “The penalty order of the Intelligence Officer (IB) is set aside for rechecking and re-examination. Further, if the appellant has lost the original purchase bill, he can obtain from the seller a duplicate bill showing the particulars as in the original bills, with a certificate of the seller to the effect that the original bill is lost and Input credit can be availed on Form 25A. The appellant is directed to produce the evidence before the assessing authority for claiming Input tax a stated above and will file objection. The assessing authority will consider the facts of the case and complete the assessment afresh after receiving the report from the Intelligence Officer (IB). For this purpose the order is set aside and remitted to the Commercial Tax Officer (A.A). W.P.(C).850/12 2 3. Accordingly, the first respondent passed Ext.P4 order and in this writ petition petitioner challenges Ext.P4, mainly on the ground that the order was passed in violation of the directions in Ext.P3 Appellate Order passed by the third respondent. 4. However, the learned Government Pleader contends that though notice was served on the dealer, the dealer did not turn up and that the request made by the Chartered Accountant's Office in his behalf dated 1.12.2011 for granting time was also turned down. It is stated that therefore, the first respondent was justified in passing Ext.P4 order. 5. However, from the additional affidavit filed by the petitioner it is seen that after the matter was remanded, the first respondent issued Ext.P10 notice. According to the petitioner, in response to Ext.P10, he appeared before the first respondent and sought time. Thereafter Ext.P11 notice was issued by the first respondent on 18.11.2011 giving the petitioner seven days time to file his objections against assessment. It is averred that Ext.P11 was served on the petitioner on 25.11.2011 and that his W.P.(C).850/12 3 Chartered Accountant submitted Ext.P12 request dated 1.12.2011 requesting for 15 days' time. The case of the petitioner is that though Ext.P12 was accepted by the first respondent, it was denying the request made by him, Ext.P4 assessment order has been passed. 6. Having considered the rival submissions, I am inclined to think that Ext.P4 was passed in violation of the principles of natural justice. As already noticed, when the petitioner was served with Ext.P11 on 25.11.2011, his representative submitted Ext.P12. Although technically it is true that the Chartered Accountant did not submit any authorization, fact remains that such a request was made and that the said request was accepted by the authority. In such circumstances, if the authority was to reject the request, the authority should have served notice to the petitioner, which was not done. In such circumstances, Ext.P4 assessment order was passed in violation of the principles of natural justice. 7. Therefore quashing Ext.P4 and directing the first W.P.(C).850/12 4 respondent to pass fresh orders in compliance with Ext.P3 with notice to the petitioner, this writ petition is disposed of. Petitioner shall produce a copy of this judgment along with a copy of the writ petition before the first respondent for compliance. ANTONY DOMINIC, Judge mrcs /true copy/ P.A. To Judge "