Wp(C)/9158/2015 Of M/S.vembanad Tempo v. The Agricultural Income Tax And Commercial Tax Officer

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR MONDAY, THE 23RD DAY OF MARCH 2015/2ND CHAITHRA, 1937 WP(C).No. 9158 of 2015 (T) --------------------------- PETITIONER : ----------------------- M/S.VEMBANAD TEMPO, AMC 12/407 A, N.H. ROAD, ARATTUVAZHY, ALAPPUZHA-688 007, REPRESENTED BY ITS PROPRIETOR, M. RADHAKRISHANA. BY ADV. SRI.K.J.ABRAHAM RESPONDENT(S): ---------------------------- 1. THE AGRICULTURAL INCOME TAX & COMMERCIAL TAX OFFICER, O/O. THE AGRICULTURAL INCOME TAX & COMMERCIAL TAX OFFICER, ALAPPUZHA -688 001 ALAPPUZHA -688 001 2. THE DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, KOLLAM- 691 013 R1 & R2 BY SR GOVERNMENT PLEADER SMT. SOBHA ANNAMMA EAPEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23-03-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ON 23-03-2015, THE COURT ON THE SAME DAY DELIVERED THE sts WP(C).No. 9158 of 2015 (T) --------------------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXHIBIT-P1-TRUE COPY OF THE ORIGINAL ASSESSMENT ORDER NO. 32041381522/2007-08 DATD 14/11/2014. 32041381522/2007-08 DATD 14/11/2014. EXHIBIT-P2-TRUE COPY OF THE APPELLATE ORDER IN KVATA (ALPY) 1086/2012 DATED 30/10/2014.DATED 30/10/2014. EXHIBIT-P3-TRUE COPY OF THE NOTICE NO. 32041381522/2007-2008 DATED 05/01/2015.05/01/2015. EXHIBIT-P4-TRUE COPY OF THE ADJOURNMENT LETTER DATED 06/02/2015. EXHIBIT-P5-TRUE COPY OF THE ACKNOWLEDGMENT BY THE IST RESPONDENT DATED 07/02/2015.DATED 07/02/2015. EXHIBIT-P6-TRUE COPY OF THE RECEIPT ISSUED BY THE INDIAN POSTAL SERVICE DATED 07/02/2015.SERVICE DATED 07/02/2015. EXHIBIT-P7-TRUE COPY OF THE ASSESSMENT ORDER NO. 32041381522/2007-2008 DATED 18/02/2015.DATED 18/02/2015. EXHIBIT-P8-TRUE COPY OF THE MEDICAL CERTIFICATE DATED 13/01/2015. EXHIBIT-P9-TRUE COPY OF THE MEDICAL FITNESS DATED 19/02/2015. RESPONDENT(S)' EXHIBITS: ---------------------------------------- NIL /TRUE COPY/ P.A.TO.JUDGE A.K.JAYASANKARAN NAMBIAR, J. =========================================== W.P.(C). No. 9158 of 2015 ===================================================== Dated this the 23[rd] day of March, 2015 JUDGMENT The challenge in the writ petition is against Ext.P7 orderpassed by the 1[st] respondent, completing the assessment of thepetitioner under the Kerala Value Added Tax Act, hereinafterreferred to as 'KVAT Act', for the assessment year 2007-08. Thecontention in the writ petition against Ext.P7 order is that the saidorder was passed in gross violation of the rules of natural justice, inthat the petitioner was not afforded an opportunity of being heardprior to passing of the said order. 2.I have heard the learned counsel appearing for thepetitioner and also the learned Government Pleader for therespondents as well. 3.On a consideration of the facts and circumstances of thecase and the submissions made across the bar, I find that this is acase where the assessment order originally passed against thepetitioner for the same assessment year, was carried in appeal bythe appellant, before the first appellate authority. The firstappellate authority has already passed Ext.P2 order, accepting thecontention of the petitioner that the assessing authority had not 2.I have heard the learned counsel appearing for thepetitioner and also the learned Government Pleader for therespondents as well. 3.On a consideration of the facts and circumstances of thecase and the submissions made across the bar, I find that this is acase where the assessment order originally passed against thepetitioner for the same assessment year, was carried in appeal bythe appellant, before the first appellate authority. The firstappellate authority has already passed Ext.P2 order, accepting thecontention of the petitioner that the assessing authority had not verified the books of accounts of the petitioner prior to completionof the assessment, and had also not heard the petitioner, prior topassing of the said order. Taking note of the said fact, theappellate authority set aside the assessment order and remandedthe matter back to the original authority. In Ext.P2 appellateorder, the appellate authority directed the petitioner to file hisobjections within one month from the date of the appellate orderby treating the appellate order as a pre-assessment notice, onwhich the assessing authority was to pass appropriate orders, afterconsidering the objections of the petitioner. It is not in disputethat even after receipt of Ext.P2 order, the petitioner did not filehis objections, within the period granted by the appellateauthority. Instead, the petitioner appears to have submittedExt.P4 representation before the assessing authority seekingfurther period of one month from 06.02.2015, for producing therelevant objections. When nothing was done by the petitionereven after that, the assessing authority proceeded to pass Ext.P7order, confirming the assessment as originally completed. It isagainst this order (Ext.P7) of the assessing authority that thepetitioner has approached this Court with the present writpetition. W.P.(C). No. 9158 of 2015 4.On a consideration of the conduct of the petitioner innot filing his objections within the time granted by the firstappellate authority, I am of the view that the challenge in the writpetition, against Ext.P7 order, on the ground that it has beenpassed in violation of the rules of natural justice, cannot beentertained. Thus, without making any observations as regardsthe merits of the petitioner's case, I relegate the petitioner to thealternate remedy of filing an appeal against Ext.P7 order of the 1[st]respondent before the appellate authority under the KVAT Act. The writ petition in its challenge against Ext.P7 order, failsand is accordingly dismissed. Sd/-A.K.JAYASANKARAN NAMBIAR JUDGE