Yogesh Trading Company V. The Assistant Commissioner (KVAT), Special Circle, Commercial Taxes and State of Kerala

WP(C)/25188/2014

AI Insights

The case involves M/s. Yogesh Trading Company, represented by its managing partner, Shri Yogesh Prabhu, who filed a writ petition against the Assistant Commissioner (KVAT), Special Circle, Commercial Taxes, Kasaragod, and the State of Kerala. The petitioner sought to quash the assessment orders issued for the assessment year 2002-03 under the KGST and CST Acts and to prevent the recovery of demands based on these orders. The petitioner argued that despite a specific direction from the court in a previous judgment (Exhibit P10), no opportunity for a hearing was provided before the issuance of the assessment orders. The court found that the petitioner was not given a proper hearing as mandated and thus set aside the assessment orders, directing a re-hearing.

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 819473 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 15-10-2014
• Assessment Year: misc
• Other Referred Cases: WA NO.1450 OF 2007 IN WPC.NO.14155 OF 2007, WPC.NO.8988/2014
• Laws Referred To: KGST Act, CST Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: SHOBA EAPEN
• Assessee Lawyers: T M SREEDHARAN; V P NARAYANAN; DIVYA RAVINDRAN
• Keywords: Assessment Order; Commercial Taxes; Opportunity of Hearing; Writ of Certiorari; Writ of Mandamus
• Section: 17(8); 6(7)(iii)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 15TH DAY OF OCTOBER 2014/23RD ASWINA, 1936 WP(C).No. 25188 of 2014 (W) ---------------------------- PETITIONER(S): ----------------- M/S.YOGESH TRADING COMPANY KOTTACHERRY KANHANGAD-671 315 - REPRESENTED BY ITS MANAGING PARTNER SHRI.YOGESH PRABHU. BY ADVS.SRI.T.M.SREEDHARAN (SR.) SRI.V.P.NARAYANAN SMT.DIVYA RAVINDRAN RESPONDENT(S): ------------------ 1. THE ASSISTANT COMMISSIONER (KVAT), SPECIAL CIRCLE, COMMERCIAL TAXES KASARAGOD-671121 2. STATE OF KERALA REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.-695001 BY SR.GOVERNMENT PLEADER SMT.SHOBA ANNAMMA EAPEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15-10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 25188 of 2014 (W) ---------------------------- APPENDIX PETITIONER(S)' EXHIBITS ---------------------------- EXT.P1 - TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WA NO.1450 OF 2007 IN WPC.NO.14155 OF 2007 DATED 21-6-2007 EXT.P2 - TRUE COPY OF THE COMMON ORDER OF THE KERALA AGRICULTURAL INCOME TAX & SALES TAX APPELLATE TRIBUNAL IN T.A.NOS.80 & 81/2013 DATED 18-1-2014 EXT.P3 - TRUE COPY OF THE LETTER DATED 21-02-2014 GIVEN BY THE PETITIONER TO THE 1ST RESPONDENT. EXT.P4 - TRUE COPY OF THE TRADING AND PROFIT LOSS ACCOUNT FOR THE YEAR ENDED 31-3-2003 OF PETITIONER'S KARIKE BRANCH EXT.P5 - COPY OF THE ASSESSMENT ORDER DATED 10-5-2006 UNDER CST OF PETITIONER'S KARIKE BRANCH. EXT.P6 - TRUE COPY OF THE REPLY DATED 24-2-2014 GIVEN BY THE PETITIONER TO THE 1ST RESPONDENT EXT.P7 - TRUE COPY OF THE NOTICE NO.36010289/2002-03 DATED 6-3-2014 ISSUED U/S 6(7)(iii) UNDER CST ACT BY THE 1ST RESPONDENT. EXT.P8 - TRUE COPY OF THE NOTICE NO.36010289/2002-03 DATED 6-3-2014 ISSUED U/S 17(8) UNDER KGST ACT BY THE 1ST RESPONDENT. EXT.P9 - TRUE COPY OF THE REPLY DATED 25-3-2014 GIVEN BY THE PETITIONER TO THE 1ST RESPONDENT. EXT.P10 - TRUE COPY OF THE JUDGMENT DATED 9-4-2014 IN WPC.NO.8988/2014 OF THIS HON'BLE COURT. EXT.P11 - TRUE COPY OF THE INTERIM ORDER DATED 11-7-2014 IN I.A.NO.9159/2014 OF THIS HON'BLE COURT. EXT.P12 - TRUE COPY OF THE ASST.ORDER DATED 10-9-2014 UNDER THE KGST ACT FOR 2002-03 PASSED BY THE FIRST RESPONDENT. EXT.P13 - TRUE COPY OF THE ASST.ORDER DATED 10-9-2014 UNDER THE CST ACT FOR 2002-03 PASSED BY THE FIRST RESPONDENT RESPONDENT(S)' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE dlk P.R. RAMACHANDRA MENON, J. ======================== W.P.(C). No. 25188 of 2014 -------------------------------------------- Dated this the 15th day of October, 2014 JUDGMENT The petitioner has approached this Court with the following prayers: (i) To call for the records of the case leading to the issue of Exhibits-P12 and P13 asst. orders under the KGST and CST Acts and to quash the same by the issue of Writ of Certiorari or any other appropriate Writ order or direction. (ii) To issue a Writ of Mandamus or any other appropriate Writ, order or direction, directing the 1st respondent to forebear from recovering the demands pursuant to Exhibits-P12 and P13 asst. orders for the asst. year 2002-03. (iii) To issue a Writ of Mandamus or any other appropriate Writ, order or direction, directing the 1st respondent to comply with the directions in the judgment Exhibit -p10 and to furnish to the petitioner forthwith all materials and evidences, both oral and documentary, and the details of investigation conducted by the Committee constituted by the Commissioner of Commercial Taxes, which are relied on in the notices Exts.P7 & P8 and the enquiry alleged to have been conducted by the 1st respondent on 5.03.2014, including opportunity for cross examination of third parties, whose evidence is relied on; (iv) To say the operation of asst. orders Exhibits-P12 and P13 and the demands pursuant thereto, pending disposal of the Writ Petition (Civil) 2. The main grievance projected by the petitioner as W.P.C. No. 25188 of 2014 -2- brought to the notice of this Court by the learned Senior Counsel for the petitioner that, in spite of the specific direction given by this Court vide Ext.P10, no opportunity of hearing was given to the petitioner, even after obtaining extension of time, as granted by this Court, as per Ext.P11 order dated 11.7.2014 in I.A. No. 9159 of 2014 filed by the respondents. Considering the said submission an interim order was passed on 29.09.2014 in the following terms: “The learned Sr. Counsel appearing for the petitioner submits that inspite of the specific direction given by this Court, as per Ext.P10 judgment to finalise the proceedings, after giving an opportunity of hearing to the petitioner and inspite of extension of time granted by this Court as per Ext.P11 order in I.A.No.9159 of 2014 filed by the respondents, no further notice was issued and no opportunity of hearing was given. Obviously, the date of hearing referred to in Ext.P12 order is with reference to the hearing held on 22.02.2014, i.e. Prior to the date of Ext.P10 judgment passed on 09.04.2014. Learned Government Pleader seeks for time to get instruction. Post on 10.10.2014.” 3. Today, when the matter is taken up for further consideration, the learned Government Pleader submits that the hearing stated as held, as referred to in Ext.P12 order, was on W.P.C. No. 25188 of 2014 -3- '22.2.2014' and that no notice of hearing was issued to the petitioner after the judgment passed on 09.04.2014. This being the position, the matter requires to be reconsidered by the concerned respondent, in conformity with the direction given by this Court as per Ext.P10 judgment. Accordingly, Exts. P12 and P13 orders are set aside. The first respondent is directed to finalize the proceedings after issuing notice of hearing to the petitioner, thus giving effective opportunity, which shall be done at the earliest, at any rate, within 'two months' from the date of receipt of a copy of this judgment. The petitioner shall produce a copy of the judgment along with a copy of the writ petition before the concerned respondent for further steps. The writ petition is disposed of. P.R. RAMACHANDRA MENON, JUDGE. kp/- "