SRI.MOHAMMED SHABEER V. THE COMMERCIAL TAX OFFICER

WP(C)/1109/2017

AI Insights

The case revolves around a writ petition filed by Mohammed Shabeer, the proprietor of M/s. Steel Centre, challenging an assessment order passed by the Commercial Tax Officer without a proper hearing. The petitioner contended that although he was issued a notice (Ext.P8) to appear for a hearing and submit a reply, the subsequent assessment order was passed without any hearing, as the officer who issued the notice had been transferred and the new officer did not conduct a hearing. The court emphasized the necessity of a fair hearing as per the principles of natural justice and the specific requirements of the KVAT Act, 2003.

• Counselvise Citation: [2017] 140 COUNSELVISE.COM (IT) 693612 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 31-01-2017
• Assessment Year: misc
• Other Referred Cases: Suzion Infrastructural v. CTO(WC) [(2010) 3 KHC 299]
• Laws Referred To: Kerala Value Added Tax Act, 2003
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: V K SHAMSUDHEEN
• Assessee Lawyers: E P GOVINDAN; G DEEPA
• Keywords: Assessment Order; Hearing Opportunity; KVAT Act; Natural Justice
• Section: 25

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN TUESDAY, THE 31ST DAY OF JANUARY 2017/11TH MAGHA, 1938 WP(C).No. 1109 of 2017 (K) --------------------------- PETITIONER(S): ------------- SRI.MOHAMMED SHABEER, PROPRIETOR, M/S.STEEL CENTRE, D.NO.50/1171, RAILWAY STATION ROAD, EDAPPALLY, COCHIN - 682 024. BY ADVS.SRI.E.P.GOVINDAN SMT.G.DEEPA RESPONDENT(S): -------------- 1. THE COMMERCIAL TAX OFFICER, COMMERCIAL TAXES, FIRST CIRCLE, KALAMASSERY AT CIVIL STATION, KAKKANAD, ERNAKULAM, COCHIN - 682 032. 2. THE COMMISSIONER OF COMMERCIAL TAXES, KERALA, PUBLIC BUILDINGS, VIKAS BHAVAN P.O., TRIVANDRUM - 695 001. 3. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM - 695 001. BY GOVERNMENT PLEADER SRI.V.K.SHAMSUDHEEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: msv/ WP(C).No. 1109 of 2017 (K) --------------------------- APPENDIX PETITIONER(S)' EXHIBITS ----------------------- P1 TRUE COPY OF REVISED ASSESSMENT ORDER DATED 15.11.2016 PASSED BY THE FIRST RESPONDENT P2 TRUE COPY OF THE REPLY DATED 25.7.2016 FILED BY THE PETITIONER P3 TRUE COPY OF THE AUDIT REPORT DATD 17.11.2015 FILED WITH THE SECOND RESPONDENT P4 TRUE COPY OF THE PURCHASE LEDGER FOR THE RELEVANT ASSESSMENT YEAR P5 TRUE COPY OF THE AUDIT REPORT IN FORM 3CB & CD FILED BEFORE THE INCOME TAX AUTHORITIES P6 TRUE COPY OF THE CLOSING STOCK INVENTORY ON 31.3.2014 P7 TRUE COPY OF THE ANNUAL RETURN DATED 5.11.2015 FOR THE YEARS 2014-15. P8 TRUE COPY OF THE PRE ASSESSMENT NOTICE DTD.25.6.2016 ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER. RESPONDENT(S)' EXHIBITS ----------------------- NIL //TRUE COPY// P.S.TO JUDGE msv/ K. VINOD CHANDRAN, J. ===================== W.P.(C)No.1109 of 2017 - K ========================= Dated this the 31st day of January, 2017 J U D G M E N T The petitioner is aggrieved with Ext.P1 order of assessment passed against the petitioner without affording an opportunity of hearing, which is a mandate as per Section 25 of the Kerala Value Added Tax Act, 2003( for brevity 'the KVAT Act'). The petitioner was issued with a notice at Ext.P8 dated 25.06.2016, in which the petitioner was directed to file reply, within a period of 15 days on receipt of the notice and appear for hearing on 28.07.2016. The practise of issuing a composite notice, giving time to file a reply and opportunity for hearing, has been deprecated in Suzion Infrastructural v. CTO(WC) [(2010) 3 KHC 299]. 2 W.P.(C)No.1109/2017 2. Further, the petitioner's specific contention is that on 28.07.2016, the petitioner approached the office of the Assessing Officer with a reply and since the Officer, who issued Ext.P8 had been transferred, the new incumbent asked the petitioner to file a reply and give her some time to acquaint herself with the files. Subsequently, no notice was issued and order was passed at Ext.P1, is the contention of the petitioner. 3. It needs to be reiterated that Section 25 of the Act specifically provides for a reasonable opportunity for hearing. Reply filed by the dealer is indicated in Ext.P1 also. The recital in Ext.P1 also would indicate that the Assessing Officer had merely verified the reply and had finalised the assessment. No hearing obviously was granted to the petitioner after the reply was filed nor was the petitioner heard on 28.07.2016 as was indicated in Ext.P8, on which date, the petitioner was present before the Assessing Officer. In such 3 W.P.(C)No.1109/2017 circumstance, Ext.P1 is set aside for violation of principles of natural justice. The petitioner shall be present by himself or through his authorised representative on 07.02.2017 at 11 AM before the Assessing Officer, on which date, the hearing shall be proceeded with or a date given within two weeks for hearing and acknowledgment received personally. The writ petition would stand allowed, however, not going into the merits of the assessment made at Ext.P1. Sd/- K. VINOD CHANDRAN, JUDGE SB/31/01/2017 // true copy // P.A to Judge "