Sauda Beevi Shoukathali v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 15TH DAY OF JANUARY 2020 / 25TH POUSHA, 1941** ## **WP(C).No.427 OF 2020(C)** **PETITIONER: SAUDA BEEVI SHOUKATHALI, VARAPPILLIKUDY HOUSE, VENDUVAZHY, KARUKADAM P.O. BY ADV. SMT.S.K.DEVI** ## **RESPONDENTS:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY ITS FINANCE SECRETARY, SECRETARIAT,**| ||**THIRUVANANTHAPURAM - 695 001.**| |**2**|**THE STATE TAX OFFICER,**| ||**STATE GOODS AND SERVICES TAX DEPARTMENT,**| ||**KOTHAMANGALAM, KERALA - 686 691.**| |**3**|**THE INTELLIGENCE OFFICER,**| ||**SQUAD NO.1, SGST DEPARTMENT,**| ||**MATTANCHERY AT ALUVA - 683 101.**| |**4**|**THE DEPUTY TAHASILDAR**| ||**KOTHAMANGALAM TALUK 686 691.**| ||**SMT.JASMINE M.M, GOVT.PLEADER**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## ALEXANDER THOMAS, J. --------------------------------------W.P.(C) No. 427 of 2020 --------------------------------------Dated this the 15[th] day of January, 2020 ## J U D G M E N T The case projected in this Writ Petition (Civil) are as follows: The petitioner was a registered dealer under the KVAT Act, 2003, on the files of the 2[nd] respondent. The assessments for the years 2013-14, 2014-15 and 2015-16 are completed by Exts.P-1 to P-3 orders under Sec.25AA of the Act and those orders were passed merely based on the penalty orders passed under Sec.67 of the Act by estimating the suppression, without hearing the petitioner and keeping the seized records within the custody of the 3[rd] respondent. The said penalty orders are under challenge in WP(C) No.16930/2018. In completing Exts.P-1 to P-3 orders the petitioner was not heard, that too without returning the seized records in spite of Ext.P-5 request of the petitioner. Moreover, orders are passed by issuing notices dated 25.2.2019 under Sec.25AA of the KVAT Act, a section inserted in the Act by Finance Act, 2019, with effect from 1.4.2019, much later than the W.P.(C) No. 427 of 2020 ..3.. date of notices. The said notices are served on the petitioner on 21.6.2019. Sec.22AA of the KVAT Act is general disciplines related to assessment under the Act to protect assesses from wild estimations, and is invoked in conformity with the provisions for best judgment assessments. It is contended by the petitioner that if Sec.22 AA of the said Act is taken as an independent section, it is to be held as violation of the Constitution as it lack time limit, reasonable opportunity of being heard etc. In this regard, the petitioner places reliance on the various judgments of the Apex Court and this Court as in _Manohar Manikrao Anchule v.State of Maharashtra [AIR 2013 SC 681], Yessses International v. State of Kerala [(2009) 23 VST 130 (Ker)(DB)], U.K.Monu Timbers v. State of Kerala [2012 (3) KHC 111 (DB)], Travancore Chemical & Manufacturing Company Ltd. v. State of Kerala [1991 (81) STC 313] & State of Kerala v. Travancore Chemicals & Mfg. Co. [1991 (1) KLT 91 (SC)]._ It is in the light of these averments and contentions that the petitioner has filed the instant Writ Petition (Civil) with the following prayers: - _i. To issue a writ of certiorari and quash Ext.P1, Ext.P2 and Ext.P3 assessment orders._ W.P.(C) No. 427 of 2020 ..4.. - _ii. To declare Section 25AA of the Kerala Value Added Tax Act,2003 is violative of Article 14 of the Constitution and ultravires the provisions of the Constitution._ - _iii. To grant such other relief as this Hon'ble Court may deem fit and proper to grant in the circumstances of the case._ - _iv. To award the cost of the petition._ 2. Heard Smt.S.K.Devi, learned counsel appearing for the petitioner and Smt.M.M.Jasmine, learned Government Pleader appearing for the respondents. 3. When the matter had come up on previous occasion, this Court had specifically directed the competent official among the respondents to precisely furnish instructions to the learned Government Pleader as to whether the petitioner was afforded reasonable opportunity of being heard before the impugned Exts.P-1 to P-3 orders were rendered. Today when the matter was taken up for consideration, Smt.M.M.Jasmine, learned Government Pleader appearing for the respondents would submit on the basis of instructions that the petitioner was not afforded reasonable opportunity of being heard before the impugned Exts.P-1 to P-3 orders were passed. 4. Further as regards the specific contention raised by the petitioner that the seized records have been kept in the custody of W.P.(C) No. 427 of 2020 ..5.. the respondents etc, the learned Government Pleader would submit on the basis of instructions that the authenticated copies of all those records have already been made available to the petitioner. In that regard, Smt.S.K.Devi, learned counsel appearing for the petitioner has made some contentions on the basis of Rule 63(7) of the KVAT Rules. In the nature of the orders to be passed in this writ petition, this Court need not decide these issues and those matters for reasons to be stated hereinafter, may be left open to be raised and decided in other appropriate proceedings. 5. After hearing both sides and after perusal of the pleadings and materials on record, this Court is of the view that the petitioner has made out a strong case that in spite of availability of alternate statutory remedy, interdiction by way of judicial review invoking the provisions contained in Article 226 of the Constitution of India could to be befittingly considered in the facts and circumstances of this case. More so particularly, in the light of the aforestated judgments relied on by the petitioner. 6. Accordingly it is ordered that the impugned Exts.P-1 to P-3 orders will stand set aside and the matters in relation to those W.P.(C) No. 427 of 2020 ..6.. proceedings shall stand remitted to the 2[nd] respondent for consideration and decision afresh. In case the petitioner wants any further materials from the department, the petitioner may immediately make a request to the competent official concerned precisely delineating the nature of the documents further required by him for prosecuting the present proceedings, and also the fair details as to why those documents are relevant for the purpose of present proceedings. The said request for any additional materials may be duly considered by the competent officials of the department and necessary decisions may be taken, and in case if it is found that those additional documents are relevant, then the department may fairly choose to ensure that authenticated copies of such materials may be given to the petitioner so that there is no room for any further complaint. The petitioner is also given liberty to file any additional materials by way of additional grounds. The petitioner is also given liberty to file memorandum of additional grounds, and may also produce any documents therewith, and this may be done within 10 days. Thereafter the 2[nd] respondent will issue notice of hearing to the petitioner and after affording W.P.(C) No. 427 of 2020 ..7.. reasonable opportunity of being heard to the petitioner through authorised representative or counsel, if any, and after adverting in detail various contentions urged by the petitioner, will render a considered decision on the said matters and then may pass orders in accordance with law without much delay and within reasonable time limit that may be found appropriate by the 2[nd] respondent. 7. Before parting with this case it is to be noted that Smt.S.K.Devi, learned counsel appearing for the petitioner has made certain submissions that by virtue of the mandate contained in Rule 63(7) of the KVAT Rules, the respondent authority concerned is legally obliged to return back the original of seized documents to the petitioner, and that so far that has to be done and that only copies of such seized records may be given, etc. This Court need not decide that issue. However in the interest of justice it is ordered that after orders are passed in the matters remitted as aforestated, it will be open to the petitioner to make requisite application before the 2[nd] respondent, seeking the return of documents and he may make his contentions on the basis of Rules of the provisional statute and if such an application is so made W.P.(C) No. 427 of 2020 **==> picture [20 x 9] intentionally omitted <==** before the 2[nd] respondent or such other competent officials concerned, then the 2[nd] respondent or competent official concerned will consider that request and after affording reasonable opportunity of being heard to the petitioner through his authorised representative or counsel if any, may render a considered decision thereon in accordance with law, and more so particularly in the light of the provisions contained in the KVAT Act and KVAT Rules, etc. With these observations and directions, the above Writ Petition (Civil) will stand disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG W.P.(C) No. 427 of 2020 ..9.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ASSESSMENT ORDER NO.32151597737/2013-14 DATED 31/08/2019.** - **EXHIBIT P2 TRUE COPY OF THE ASSESSMENT ORDER NO.32151597737/2014-15 DATED 31/08/2019.** - **EXHIBIT P3 TRUE COPY OF THE ASSESSMENT ORDER NO.32151597737/2015-16 DATED 20/9/2019.** - **EXHIBIT P4 TRUE COPY OF THE NOTICE ISSUED FOR THE YEAR 2014-15 DATED 25/02/2019.** - **EXHIBIT P5 TRUE COPY OF THE REPLY TO EXT.P4 DATED 4/7/2019.** - **EXHIBIT P6 TRUE COPY OF THE LETTER DATED 02/04/2019.** - **EXHIBIT P7 TRUE COPY OF THE DEMAND NOTICE NO.RRC NO.2019/15792/07 DATED 13/12/2019 U/S 7 AND 34 OF THE KRR ACT.** - **EXHIBIT P8 TRUE COPY OF THE DEMAND NOTICE NO.RRC NO.2019/15794/07 DATED 13/12/2019 U/S 7 AND 34 OF THE KRR ACT.** **EXHIBIT P9 TRUE COPY OF THE DEMAND NOTICE NO.RRC NO.2019/15796/07 DATED 13/12/2019 U/S 7 AND 34 OF THE KRR ACT.**