## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE AMIT RAWAL**
**MONDAY, THE 17TH DAY OF FEBRUARY 2020 / 28TH MAGHA, 1941**
## **WP(C).No.4399 OF 2020(Y)**
## **PETITIONER:**
**H.MUSTHAFA AGED 51 YEARS PROPRIETOR, A TO Z SUPER MARKET, HEMAMBIKA NAGAR, RAILWAY COLONY, OLAVAKKODE, PALAKKAD DISTRICT.**
**BY ADVS. SRI.JOSE JOSEPH SRI.AJAY BEN JOSE SMT.ALEENA MARIA JOSE**
## **RESPONDENTS:**
**THE STATE TAX OFFICER SECOND CIRCLE, STATE GST DEPARTMENT, GST COMPLEX, PALAKKAD-678001.**
## **DR.THUSHARA JAMES, SR.GOVT.PLEADER**
**THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **JUDGMENT**
**Dated this the 17th day of February 2020**
Petitioner has approached this Court to challenge Ext.P17 assessment order dated 22.2.2020 under the Kerala Value Added Act for the year 2012-2013 only on one ground that he was not afforded any opportunity of hearing.
2. In order to support the aforementioned submission, the learned counsel appearing on behalf of the petitioner submits that for the period 2012-2013, petitioner filed return under the KVAT Act conceding total and taxable turnover of Rs.10,26,54,513/- and Rs.8,76,70,579/- respectively. Petitioner received notice dated 15.10.2014 under Section 25(1) of the KVAT Act,
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proposing to reject the return and assess the turnover on the best of judgment basis, on the allegation of suppression of Rs.50,000/- on interception of goods and unaccounted purchases for Rs.3,65,38,606.86/- and short reporting of interstate purchases for Rs.1,13,56,049/-. The aforementioned notice was supplemented by a revised notice dated 14.11.2014 proposing to further addition of equal amount of the alleged suppression. Petitioner objected the above proposals. However, after verifying the books of accounts, another revised notice dated 28.11.2014 as Ext.P1 was issued by the assessing authority. The assessing officer completed the assessment on the petitioner for the return period 2012-2013, vide Ext.P2 order dated 19.12.2014, which was challenged by an appeal before the Appellate Authority.
3. The Appellate Authority vide Ext.P3 order dated
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18.9.2015 set aside the assessment order and directed the assessment authority to complete the assessment after issuing a fresh per-assessment notice.
4. Petitioner received a fresh pre-assessment notice dated 4.3.2017 alleging unaccounted purchase of Rs.25,10,592/- and unaccounted interstate purchases of Rs.1,35,95,500/- and unaccounted purchases with G P and making further addition of equal amount. The aforementioned demand was objected vide Ext.P4 dated 17.3.2017 and time was sought till 31.3.2017 to produce the materials in support of the contentions. Another objection notice was submitted by the petitioner vide Ext.P5 dated 27.3.2017 with a request to afford an opportunity to cross examine the main dealer and having a personal hearing was also sought. The assessing officer was explained that they have not effected any purchases from M/s B.S.Jain &
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Company, Coimbatore even a lawyer notice dated 4.4.2017 has been issued to the M/s B.S Jain & Company requiring them to file a statement before the assessing authority. Petitioner was served with Ext.P7 assessment order dated
31.3.2017.
5. The aforementioned order was challenged by WP(C) No 19847 of 2017 alleging violation of the principles of natural justice and non compliance of the specific direction of the appellate authority. This Court vide order dated 15.6.2017 directed the assessing authority to take the decision after affording an opportunity of hearing to the petitioner, as Ext.P8.
6. The petitioner appeared before the assessing authority on 28.6.2017 and was heard on 10.7.2017. An application dated 11.7.2017 under the Right to Information Act was submitted for furnishing information regarding as
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to whom M/s. B.S Jain & Company sold the goods as per the invoice relied by the assessing authority. As per Ext.P10, it is found that M/s B.S Jain & Company did not report the turnover covered by the invoices alleged to have stood in the name of the petitioner. On receipt of Ext.P10 information, petitioner submitted the same to the assessing authority. However, no action has been taken by the assessing officer for a period of two years. On 27.7.2019, vide Ext.P11, the petitioner was issued a notice for producing the books of accounts for the year 20122013 and thereafter, the assessing authority issued another notice dated 5.10.2019 for affording an opportunity of hearing on 27.10.2019. The aforementioned notice was followed by another notice dated 9.12.2019 as Ext.P12.
7. The learned counsel appearing on behalf of the
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petitioner submits that as per Ext.P12 notice, petitioner was required to file objections within fifteen days of receipt of the notice. Petitioner received the notice on 6.1.2020 and the fifteen days expired on 21.1.2020. This Court, in a number of judgments, held that the composite notice calling the objection and hearing is not sufficient to comply with the 'right to be heard' and the tax officer is duty bound to give effective opportunity of hearing. Petitioner vide Ext.P14 letter dated 13.1.2020 requested two weeks further time from 21.2.2020 to file objections. However, the respondents without adverting to the notice, called upon the petitioner to appear on 17.1.2020 vide Ext.P14. Petitioner had, submitted, a reply to Ext.P14 requesting to grant time till 21.1.2020 vide Ext.P15 communication dated 16.1.2020. Thereafter, petitioner submitted objection to Ext.P12 notice on 17.1.2020 vide
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Ext.P16. Without affording the opportunity of hearing to the petitioner, the assessment order has been passed. Reliance has also been laid on the decision of Hon'ble Supreme Court in Whirlpool Corporation v. Registrar of Trade Marks [(1998) 8 SCC 1].
8. Having heard the learned counsel for the petitioner, I am of the view that the grievance so expressed in the present writ petition do not call for any interference under Article 226 of the Constitution of India to bring the case within the helm of judicial review for the reason that this Court, in pursuance to Ext.P8 order dated 15.6.2017, directed the assessing officer to give opportunity of hearing to the petitioner. Operative part of the order reads hearinbelow:-
“On a consideration of the facts and circumstances of the case and the submissions made
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across the bar, I find from a perusal of Ext.P5 order that although the petitioner had specifically sought for a personal hearing before passing any order of assessment, the said personal hearing was denied to him. Under the circumstances, I find that Ext.P5 order cannot be legally sustained as it vitiated by an non-compliance with the rules of natural justice. I, therefore, quash Ext.P5 order and direct the respondent to pass fresh orders after hearing the petitioner. To enable the respondent to do so, I direct the petitioner to appear before the respondent at his office at 11 am on 28.6.2017. The respondent shall pass fresh orders as directed within a month thereafter.”
9. Thereafter, Exts.P10, P11 and P12 notices were given to the petitioner to give replies, affording more opportunities and even Ext.P14 was also served. But in all those replies, petitioner stuck to afford of the fifteen days period of time which was earlier granted vide Ext.P12.
De hors the fact that the petitioner filed the objections
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on 17.1.2020, the assessing officer in the impugned assessment notice that though the previous officer had given the hearing but since new officer assumed charge in 2019 and notices were given and objections were nothing but on the premise that information from M/s B.S. Jain & Company whose search revealed the name of the petitioner regarding the details available on the website with regard to the transaction of M/s. B.S Jain & Company and had not been co-oporated was being sought. This precisely was Prior to the order of this Court whereby the previous assessment orders were also passed. No new ground or objection has been taken except the representations. The impugned order also reveals that the opportunity of hearing was accorded on 17.1.2020 where the petitioner submitted that he has no further documentary evidence to produce and rather obtaining to take legal action against
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persons involved on the receipt of the assessment order.
In my view, present writ petition is prima facie a contumacious litigation just to delay the proceedings pending before the Income tax Authorities.
No grounds of interference is made out, the writ petition is accordingly dismissed.
**Sd/-**
**AMIT RAWAL JUDGE**
ACM
## **WP(C).No.4399 OF 2020(Y) 12**
## **APPENDIX**
## **PETITIONER'S/S EXHIBITS:**
**EXHIBIT P1 TRUE COPY OF THE NOTICE U/S 25(1) OF THE KVAT ACT FOR THE YEAR 2012-13 DATED 28.11.2014.**
**EXHIBIT P2 TRUE COPY OF ASSESSMENT ORDER FOR THE YEAR 2012-13 DATED 19.12.2014.**
**EXHIBIT P3 TRUE COPY OF THE ORDER IN KVAT APPEAL NO.55/2015 DATED 18.09.2015.**
- **EXHIBIT P4 TRUE COPY OF PETITIONER'S OBJECTION DATED 17.03.2017.**
**EXHIBIT P5 TRUE COPY OF PETITIONER'S OBJECTION DATED 27.03.2017.**
- **EXHIBIT P6 TRUE COPY OF LAWYER NOTICE TO M/S.B.S.JAIN & CO. DATED 04.04.2017.**
**EXHIBIT P7 TRUE COPY OF ASSESSMENT ORDER FOR THE YEAR 2012-13 DATED 31.03.2017.**
- **EXHIBIT P8 TRUE COPY OF JUDGMENT IN WP(C) NO.19847 OF 2017 DATED 15.06.2017.**
- **EXHIBIT P9 TRUE COPY OF APPLICATION UNDER THE RIGHT TO INFORMATION ACT DATED 11.07.2017.**
- **EXHIBIT P10 TRUE COPY OF LETTER FROM ASSISTANT COMMISSIONER, COMMERCIAL TAXES, COIMBATORE DATED 11.08.2017.**
- **EXHIBIT P11 TRUE COPY OF NOTICE U/S 95 OF THE KVAT ACT DATED 05.10.2019.**
- **EXHIBIT P12 TRUE COPY OF NOTICE U/S 25AA OF THE KVAT ACT DATED 09.12.2019.**
**EXHIBIT P13 TRUE COPY OF PETITIONER'S LETTER DATED 13.01.2020. EXHIBIT P14 TRUE COPY OF NOTICE DATED 13.01.2020.**
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|**EXHIBIT P15**|**TRUE COPY OF PETITIONER'S LETTER DATED**|
|---|---|
||**16.01.2020.**|
|**EXHIBIT P16**|**TRUE COPY OF PETITIONER'S OBJECTION TO**|
||**EXT.P12 NOTICE DATED 17.01.2020.**|
|**EXHIBIT P17**|**TRUE COPY OF ASSESSMENT ORDER UNDER**|
||**THE KVAT ACT FOR THE YEAR 2012-13**|
||**DATED 22.01.2020.**|
