2016 (1) TMI 378 - KERALA HIGH COURT

M/s. JMASSH DOORS AND WINDOWS PRIVATE LIMITED Versus THE COMMERCIAL TAX OFFICER and THE STATE OF KERALA

The grievance of the petitioner in the writ petition is essentially that, prior to passing Ext.P8 order, the petitioner was not afforded an opportunity of being heard and further the petitioner was not given an opportunity to produce the books of accounts and other records to fortify the contentions in the reply submitted to the pre-assessment notice.

The Issues:

1. That in response to a notice that was issued to the petitioner on 10.07.2015, the petitioner had preferred Ext.P5 reply dated 17.08.2015, which was submitted before the office of the 1^st respondent on the same date.
2. While the petitioner made reference to entries made in the ledger and other books of accounts maintained by the petitioner, the books of accounts themselves were not made available for perusal by the adjudicating authority.
3. There was nothing done in the matter by the petitioner even thereafter till 31.08.2015, on which date, Ext.P8 order was passed by the 1st respondent.
4. The petitioner filed Ext.P6 reply, substantially on the same lines as Ext.P5 reply, but adding a sentence therein namely, that the petitioner be provided with an opportunity to produce books of accounts for 2012-2013 along with a personal hearing. The documents produced by the petitioner would show that Ext.P6 reply was submitted before the office of the 1st respondent only on 04.09.2015.
5. By this time however, the 1st respondent had already passed Ext.P8 assessment order, as also issued the notice of demand. Considering the fact that the petitioner had almost two week’s time after the submission of Ext.P5 reply and before the 1st respondent passed Ext.P8 order, to produce the books of accounts, in order to substantiate his contentions in Ext.P5 reply,

Held:

6. Order of the 1st respondent cannot be faulted on the ground that it was passed in violation of Rules of Natural Justice. The petitioner having chosen not to produce his books of accounts for perusal by the 1st respondent before the assessment, cannot be heard to complain of a violation of the Rules of Natural Justice while passing Ext.P8 order. The writ petition in its challenge against Ext.P8 order, therefore fails and is accordingly dismissed.

The learned counsel for the petitioner would submit that he would require some time to prefer an appeal against Ext.P8 order of the 1st respondent. Taking note of the said submission, I make it clear that if the petitioner prefers an appeal against Ext.P8 order, before the appellate authority, within two weeks from the date of receipt of a copy of this judgment, after complying with all the statutory formalities in connection with the same, the appellate authority shall consider the same as a duly constituted appeal in terms of the KVAT Act. To enable the petitioner to avail the alternate remedy as above, I also direct that recovery steps for recovery of amounts confirmed against the petitioner by Ext.P8 order, shall be kept in abeyance for the aforesaid period of two weeks.