NOVATEUR ELECTRICAL AND DIGITAL SYSTEMS(P) LTD. v. THE ASSISTANT COMMISSIONER, SPECIAL CIRCLE III, STATE GOODS AND SERVICES TAX DEPARTMENT

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 09TH DAY OF JANUARY 2020 / 19TH POUSHA, 1941** ## **WP(C).No.22 OF 2020(C)** ## **PETITIONER:** **NOVATEUR ELECTRICAL AND DIGITAL SYSTEMS(P) LTD., THIRD FLOOR, J B MANJOORAN ESTATE, BYE PASS, EDAPPALLY, EDAPPALLY 682 024, ERNAKULAM DISTRICT, REPRESENTED BY MRS. RAJINI TOMYAUTHORISED SIGNATORY.** **BY ADV. SRI.JOSEPH JERARD SAMSON RODRIGUES** ## **RESPONDENT:** **THE ASSISTANT COMMISSIONER, SPECIAL CIRCLE III, STATE GOODS AND SERVICES TAX DEPARTMENT, PERUMANOOR POST, ERNAKULAM 682 015, ERNAKULAM DISTRICT.** **SMT.THUSHARA JAMES, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.22 OF 2020(C)** **2** ## **ALEXANDER THOMAS, J.** ## **===========================** ## **W.P(C) No.22 of 2020** **===========================** Dated this the 09[th] day of January, 2020 ## **JUDGMENT** The prayers in the above Writ Petition (Civil) are as follows: - (i) Issue a Writ of Certiorari or other appropriate writ or orders or direction as this Hon'ble Court deems fit to call for the records leading to the issue of **Ext-P3** assessment order and to strike down and quash the same. - (ii)Issue a Writ of Mandamus or other appropriate writ or order restraining the Respondent or anybody acting on their behalf from recovering the amount covered by Ext-P3 Assessment Order. - (iii)Issue such other writ, order, or direction, which this Hon'ble court deems fit and necessary in the interest of justice. 2. Heard Sri.Joseph Jerard Samson Rodrigues, learned counsel appearing for the petitioner and Smt.Thushara James, learned Government Pleader appearing for the respondent. 3. It is stated that the petitioner's the best judgment assessment for the year 2013-2014 was completed on 29.01.2019. That thereafter, the respondent has issued Ext.P-1 notice dated 18.10.2019 proposing to re-open the assessment for the year 2013-2014, taking into **WP(C).No.22 OF 2020(C)** **3** account the order dated 21.11.2017 issued by the Intelligence Officer, Mattancherry, Aluva (referred to the statement No.2 in Ext.P1) in the matter of imposition of penalty amount of Rs.76,480/- for the said year. According to the petitioner, she was never granted a copy of the said penalty order dated 21.11.2017 (referred to the statement No.2 in Ext.P1) before 02.12.2019 and she had received it for the first time only on 02.12.2019. That immediately on receipt of Ext.P1 notice dated 18.10.2019, the petitioner has submitted Ext.P2 letter dated 22.11.2019 requesting the respondent to keep in abeyance further proceedings proposed in Ext.P-1 till the disposal of the statutory appeal that may be preferred by the petitioner against the said penalty order dated 21.11.2017. The complaint of the petitioner is that without even affording a personal hearing of the petitioner, the respondent has now issued Ext.P-3 assessment order dated 30.11.2019 in a hasty manner, whereby the assessment proposed in Ext.P-1 has been finalised. According to the petitioner, the petitioner had sought for a copy of the abovesaid penalty order dated 21.11.2017 said to have been issued by the Intelligence Officer, Mattancherry at Aluva and the petitioner received **WP(C).No.22 OF 2020(C)** **4** a certified copy of the said penalty order dated 21.11.2017 only on 02.12.2019. Immediately thereafter, the petitioner has filed the statutory appeal to impugn the said penalty order dated 21.11.2017 and the said appeal has been duly filed on 05.12.2019 and thereupon, Appeal No.2967/2019 has been registered before the Deputy Commissioner concerned, Ernakulam on 05.12.2019. Further, the petitioner would point out that she has actually received a copy of Ext.P-3 assessment order only on 21.12.2019, though Ext.P-3 is dated 30.11.2019. 4. The learned counsel for the petitioner has made available original of the postal envelope in which Ext.P13 was forwarded to him, wherein it is shown that the same has been served on 21.12.2019. 5. The complaint of the petitioner is that Ext.P-3 assessment order is _per se_ illegal and _ultra vires_ , for the simple reason that not even the fairness of the reasonable opportunity of personal hearing was granted to the petitioner before the decision as per Ext.P-3 has been rendered. Further that, the specific request made by the petitioner in Ext.P-2 letter that the assessment proposed in Ext.P-1 notice dated **WP(C).No.22 OF 2020(C)** **5** 18.10.2019 will be kept in abeyance. Still the disclosure of the statutory appeal that is to be preferred by the petitioner in the abovesaid penalty order dated 21.11.2017 be disposed of. The learned counsel for the petitioner would submit that it is now well settled by a series of rulings of the Apex Court as well as the various High Courts including this Court that there is blatant violation of principles of natural justice and of blatant unfairness, etc., the High Courts can exercise its discretion under Article 226 of the Constitution of India, even if the statutory alternate remedies are otherwise available. 6. After hearing both sides, it is seen that the said penalty order dated 21.11.2017 is an _ex-parte_ order. The petitioner has got a definite case that he has never served with a copy of the said penalty order dated 21.11.2017 and he got a copy of the same only on 02.12.2019, whereupon he has preferred an appeal in the said penalty order on 05.12.2019, which was now pending as Appeal No.2967/2019 before the Deputy Commissioner concerned Ernakulam. Since the re-opening of the assessment proposed in Ext.P-1 which was conveyed by Ext.P-3 is intimately connected to the matters in respect of such penalty order **WP(C).No.22 OF 2020(C)** **6** dated 21.11.2017, which is now pending in appeal, then personal opportunity of being heard before an order in the date of Ext.P-3 should have been issued should have been given to the petitioner. Further the respondent should have taken into account the crucial and relevant aspects, as to whether it should have awaited for the disposal of the appeal as against the penalty order before he had finalised the proceedings in relation to Ext.P-1 notice. Therefore, this Court has no hesitation to hold that in the facts and circumstances of the case. It is an indisputable fact of the matter that the petitioner was never given reasonable opportunity of personal hearing in this case before the issuance of Ext.P-3 order and he has been served with a copy of Ext.P-3 dated 30.11.2019 only on 21.12.2019. The Apex Court has held in various decisions as in _**Suzion Infrastructure Service Ltd. v. Commercial Tax Officer (W.C), Ernakulam**_ (2010 (3) KHC 299) wherein there is patent violation of principles of natural justice, the writ court could exercise its discretion, notwithstanding availability of alternate settlement of remedies. In the light of these aspects, it is ordered that the matter requires serious reconsideration at the hands of **WP(C).No.22 OF 2020(C)** **7** the respondent and so that the matter may be reconsidered after affording a reasonable opportunity of personal hearing of the petitioner, through the authorized representative/counsel, if any. In that view of the matter, it is ordered that the impugned Ext.P-3 order will stand set aside and the matter in Ext.P-1 notice will stand remitted to the respondent, for consideration and decision afresh. The respondent is directed to ascertain from the Deputy Commissioner concerned, who is dealing with Appeal No.2967/2019, which is stated to be the appeal as against the said penalty order dated 21.11.2017 about the present stage of the said appeal and as to by when the said appeal is likely to be disposed of. The respondent should seriously consider and decide whether he may await till the final decision in the said appeal, as against the said penalty order dated 21.11.2017 before the respondent finalised action in pursuance of Ext.P-1 notice. That is the matter to be considered and relevant aspects of the matter is to be duly examined by the respondent. 7. Before taking appropriate decision in that regard, the respondent will thereafter sent notice of hearing to the petitioner and may afford **WP(C).No.22 OF 2020(C)** **8** reasonable opportunity of being heard to the petitioner through the authorized representative or counsel, if any and then may pass appropriate orders, in accordance with law on the matters in Ext.P-1. Further in the interest of justice, it is ordered that the Appellate Authority concerned (The Deputy Commissioner concerned, Ernakulam) may also endeavour to take all reasonable measures possible in the circumstances to ensure that Appeal No.2967/2019 filed by the petitioner to impugn the said penalty order dated 21.11.2017 is considered and disposed of, after affording reasonable opportunity of being heard to the petitioner through the authorized representative/counsel, if any, without much delay, preferably within a period of 4 to 6 weeks from the date of production of a certified copy of this judgment. The Secretary to the office of the Advocate General will forward copies of this judgment to the respondent as well as to the abovesaid Deputy Commissioner concerned, who is dealing with Appeal No.2967/2019, for necessary information and further action. After passing orders on the said appeal, the Deputy Commissioner concerned will forward copy of the said appellate order to the petitioner as well as **WP(C).No.22 OF 2020(C)** **9** to the respondent herein, for necessary information. With these observations and directions, the above Writ Petition (Civil) stands finally disposed of. **Sd/-** **ALEXANDER THOMAS JUDGE** vgd **WP(C).No.22 OF 2020(C)** **10** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE NOTICE NO. 32070499233/2013-14 DATED 18.10.2019 ISSUED BY THE RESPONDENT. EXHIBIT P2 TRUE COPY OF THE LETTER DATED 22ND NOVEMBER, 2019, FILED BY THE PETITIONER. EXHIBIT P3 TRUE COPY OF THE ORDER NO. 32070499233/2013-14 DATED 30.11.2019 ISSUED BY THE RESPONDENT.**