By Advs.sri.harisankar v. Menon Smt.meera V.menon

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC &THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU TUESDAY, THE 23RD DAY OF AUGUST 2016/1ST BHADRA, 1938 W.A.No.1662 of 2016 IN WP(C).30486/2015 ---------------------------------------AGAINST THE JUDGMENT IN WP(C)30486/2015 of HIGH COURT OF KERALA DATED 04-07-2016 APPELLANT/PETITIONER: --------------------- P.V.RON M/S. GLORIA TRADERS, KIZHAKKANCHERRY ROAD, VADAKKANCHERRY, PALAKKAD DISTRICT. M/S. GLORIA TRADERS, KIZHAKKANCHERRY ROAD, BY ADVS.SRI.HARISANKAR V. MENON SMT.MEERA V.MENON RESPONDENT/RESPONDENT: ---------------------- THE AGRICULTURAL INCOME TAX AND COMMERCIAL TAX OFFICER ALATHUR-678 541. R BY GOVERNMENT PLEADER SRI.MOHAMMED RAFIQ THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23-08-2016, THECOURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC & DAMA SESHADRI NAIDU, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Writ Appeal No.1662 of 2016 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23[rd ] day of August, 2016 Antony Dominic, J. JUDGMENT This appeal has been filed by the petitioner in W.P.(C) No.30486/15. By the judgment under appeal, the learned SingleJudge dismissed the writ petition. It is aggrieved by this judgment,this appeal is filed. 2. We heard the counsel for the appellant and the learned Government Pleader appearing for the respondent. 3. The appellant is an assessee under the Kerala Value Added Tax Act. Based on the inconsistency between the audited accountsand the returns filed by the appellant with the details available inthe KVATIS, proceedings under Section 25 of the KVAT Act wereinitiated against the appellant. Accordingly, Ext.P1 notice wasissued. On receipt of the notice, the appellant submitted Ext.P2reply where, inter alia, made a request to summon the outstation dealers, drivers and owner of the vehicle in which the goods wereallegedly transported to Kerala and permit him to cross examine them. Although an opportunity of hearing was offered to theappellant on 8.7.2015, the appellant did not appear before therespondent. Respondent, therefore, passed Ext.P3 assessment orderunder Section 25(1) of the KVAT Act. It was this order, which waschallenged. The main contention raised by the appellant before thelearned Single Judge and which was reiterated before us was theviolation of principles of natural justice. According to the appellant,despite a specific request made in Ext.P2, an opportunity of crossexamination was not allowed and, therefore, Ext.P2 order is passedin violation of the principles of natural justice, entitling the appellantfor proceeding under Article 226 of the Constitution of India. 4. Having considered this submission made, we confess ourinability to accept the same. True, on the initiation of theproceedings under Section 25 of the Act, when notice was issued,the appellant filed his reply as Ext.P2. In the reply, he also sought anopportunity of cross examination. However, if the appellant was ofthe view that in order to substantiate his contention, such an : 3 : opportunity of hearing was essential, according to us, it was incumbent on the part of the appellant to appear before therespondent on 8.7.2015 and to convince the necessity to allow himan opportunity to cross examine the persons who would havesubstantiated his contention. On the other hand, the appellantappear did not appear before the respondent and instead kept awayfrom the proceedings which resulted in Ext.P3 order. : 3 : opportunity of hearing was essential, according to us, it was incumbent on the part of the appellant to appear before therespondent on 8.7.2015 and to convince the necessity to allow himan opportunity to cross examine the persons who would havesubstantiated his contention. On the other hand, the appellantappear did not appear before the respondent and instead kept awayfrom the proceedings which resulted in Ext.P3 order. 5. In such a situation, we are unable to infer a case of violationof principles of natural justice on the part of the respondent inconcluding the proceedings and passing Ext.P3. We are also of theview that the learned Single Judge has rightly rejected thecontentions raised by the learned counsel for the appellant. The appeal fails and it is dismissed accordingly. SD/- ANTONY DOMINIC JUDGE SD/- DAMA SESHADRI NAIDU JUDGE