M/S Ultra Readymix Concrete Private Ltd. v. State of Kerala and The Assistant Commissioner, Special Circle, Commercial Taxes, Palakkad

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **THURSDAY, THE 6TH DAY OF OCTOBER 2016/14TH ASWINA, 1938** ## **WP(C).No. 32371 of 2016 (V)** **-------------------------------------------** **PETITIONER(S) :** **--------------------------** **M/S. ULTRA READYMIX CONCRETE PRIVATE LTD., 4/942, NIDA, KANJIKODE, PALAKKAD, KERALA, REPRESENTED BY ITS MANAGING DIRECTOR S.SIVASAMY.** **BY SRI.BECHU KURIAN THOMAS (SENIOR ADVOCATE) ADV. SRI.RONY JOSE** **RESPONDENT(S) :** **----------------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF COMMERCIAL TAXES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001.** **2. THE ASSISTANT COMMISSIONER, SPECIAL CIRCLE, COMMERCIAL TAXES, PALAKKAD.** **BY SPL. GOVERNMENT PLEADER SRI. C.E.UNNIKRISHNAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06-10-2016, ALONG WITH W.P(C).NO. 32387 OF 2016 AND W.P(C).NO. 32402 OF 2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. **WP(C).No. 32371 of 2016 (V)** **------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** **EXHIBIT P1: A TRUE COPY OF THE PRE-ASSESSMENT NOTICE DATED 24.06.2016 BEARING NO. 32090608989/2012-13.** **EXHIBIT P2: A TRUE COPY OF THE OBJECTION DATED 15.07.2016 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.** **EXHIBIT P3: A TRUE COPY OF THE ORDER DATED 31.08.2016 NO. 32090608989/2012-13.** **RESPONDENT(S)' EXHIBITS :** ## **NIL** **//TRUE COPY//** **P.S.TO JUDGE.** Msd. ## **A.M. SHAFFIQUE, J.** =============== W.P. (C) Nos. 32371, 32387 & 32402 of 2016 =========================== Dated this, the 6[th] day of October, 2016 ## **J U D G M E N T** These writ petitions are filed challenging the assessment orders passed on the ground that there is violation of principles of natural justice. 2. The main contention urged by the petitioner is that though several invoice particulars have been mentioned in the pre-assessment notice, those are not relating to the transactions in which petitioner is involved and when the petitioner sought for particulars relating to those invoices, without providing copies of the documents, assessment orders had been passed. 3. In all these cases, Ext.P3 is the assessment order. A perusal of Ext.P3 would show that the assessing officer had considered the claim for providing copies. It is stated in Ext.P3, which forms part of WP(C) No. 32387/2016, as under:- _“The first contention of the assessee was that they will be able to submit reply to the above notice, if copies of the 134 transport documents as per KVATIS data were provided to them. Assessee put_ ## W.P(C) No. 32371/16 & conn.cases ## -:2:- _an objection that they had not received the said specified goods through the checkpost from Tamil Nadu. Assessee further argued that they had not dealt in with Rock Powder, moulding sand, Iron ore and other materials stated above, perusal of the connected records will clear the suspicion arisen in that regard._ _The objections are examined and considered. Hence a Final hearing notice dated 20/7/2016 was issued as referred as 3[rd] above allowing him an opportunity to appear on 25/7/2016 regarding the objections filed on the reply dt 18.7.2016._ _But assessee filed a letter dt 30/7/2016 stating that they had received the notice dt 20/7/2016 referred as 3[rd] above, only at 1.30 hrs on 27/7/2016 with a direction to appear on 25/7/2016, hence the notice was infructuous. Assessee further requested to provide the copies of the invoices and ten days time to file the objections._ _Assessee was also allowed another opportunity to prove his genuineness by sending an adjournment notice dt 10/8/2016 as referred as 5[th] above with an instruction to appear on 20/8/2016 with books of accounts and other documents and evidences if any to prove their genuineness. The authorized representative Mr.James, along with Mr.Rajesh Pathak, Accountant of the firm appeared on 22/8/2016. The objections are heard, but the authorized representatives had not produced any evidence to prove their contentions._ _Assessee raised the objections that he had not dealt with the items mentioned in the notice. But verification of the items mentioned in the_ W.P(C) No. 32371/16 & conn.cases ## -:3:- _notice itself revealed that all the items are dealt by the assessee himself. Some time dealer's themselves mention M sand as Rock Powder._ _All the details of the invoices available in this office, such as invoice number, Name of consignor, date of invoice, value, name of checkpost, each and every details available were already provided in the pre assessment notice. If assessee had accounted any of the above mentioned transactions, they could have produced their purchase and sales list uploaded in KVATIS at least at the time of personal hearing allowed. Instead assessee files adjournment request only and raises an objection that he had not received any such goods. Hence it is proved that assessee filed objections without any base and only with an intention to delay the assessment and further proceedings._ _Assessee was not able to prove that the omissions and suppressions mentioned in the preassessment notice were duly accounted in his books of account.”_ It is clearly indicated that all details of the invoices were available in the office of the department such as invoice number, name of consignor, date of invoice, value, name of checkpost and that all the details were provided in the pre-assessment notice. It is further observed that if the assessee had accounted any of the above transactions, they could have produced their purchase and sales list uploaded in KVATIS atleast at the time of personal W.P(C) No. 32371/16 & conn.cases ## -:4:- hearing allowed. Instead, the assessee filed adjournment request and raised objection that he had not received any such goods. 4. In so far as this aspect of the matter has already been considered by the assessing authority, I do not think that this Court will be justified in interfering with the assessment orders at this stage. Whether the assessee was actually entitled for all the copies of the invoices or whether any prejudice had been caused to the petitioner on account of non supply of such documents are all matters which can as well be considered in a properly constituted appeal before the competent appellate authority. The proposition in this regard is well settled as has been held by the Apex Court in _**CIT v. Chhabil Dass Agarwal**_ (2014) 1 SCC 603] _-_ at paragraphs 15, 16 and 17, which read as under: _**“15.** Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titaghur Paper Mills case and other similar judgments that the High Court will not_ ## W.P(C) No. 32371/16 & conn.cases ## -:5:- _entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation._ _**16.** In the instant case, the Act provides complete machinery for the assessment/reassessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the assessee could not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Appeals). The remedy under the statute, however, must be effective and not a mere formality with no substantial relief. In Ram and Shyam Co. v. State of Haryana this Court has noticed that if an appeal is from “Caesar to Caesar’s wife” the existence of alternative remedy would be a mirage and an exercise in futility._ _**17.** In the instant case, neither has the writ petitioner assessee described the available alternate remedy under the Act as ineffectual and non-efficacious while invoking the writ jurisdiction of the High Court nor has the High Court ascribed cogent and satisfactory reasons to have exercised its jurisdiction in the facts of the instant case. In light of the same, we are of the considered opinion_ ## W.P(C) No. 32371/16 & conn.cases ## -:6:- _that the writ court ought not to have entertained the writ petition filed by the assessee, wherein he has only questioned the correctness or otherwise of the notices issued under Section 148 of the Act, the reassessment orders passed and the consequential demand notices issued thereon.”_ 5. Under such circumstances, I do not find any reason why this Court should look into all the factual aspects involved in the matter. Primarily, I am not satisfied that there is violation of principles of natural justice which requires adjudication by this Court as far as the assessment orders are concerned. Writ petitions are, therefore, dismissed. Sd/- ## **A.M. SHAFFIQUE, JUDGE** Rp6/10/2016 //True Copy// P.S to Judge