TMI Blog2022 (3) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... the availability of the above-mentioned twin ingredients. The orders of assessment apart from failing to give a reasonable opportunity of hearing had failed to consider any of the issues that arose and are seen to be non-speaking orders, issued without due application of mind - the opportunity for contesting a case must be a real opportunity and not an unreal one. The real opportunity arises when the petitioner is accorded a sufficient chance to place all the materials before the assessing officer. The opportunity contemplated must be real and not ritualistic, effective and not illusory. In the instant case, it is found that such an opportunity was not available to the petitioner for reasons beyond the control of the petitioner. Even the request for three months time to produce the documents, requested as per Ext.P8, is seen refused, on the ground that already two months time had been granted. Application of mind to the request was glaringly absent. This Court notices that the orders of assessment are not speaking orders, since the specific issues arising in the case were not considered by a proper application of mind. Non-application of mind as mentioned earlier is also a case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... engaged in the manufacture and export of gold and other jewellery, including precious metals. Petitioner claimed that its Managing Director had commenced his business operations at Kuwait, but during the 'Kuwait war', his showrooms were looted. Despite the loss, he commenced his business in UAE and soon flourished. Later, he set up showrooms in India and flourished here also. Yet again, ill fate struck him and he was arrested and imprisoned in Dubai. 5. Petitioner claimed that pursuant to the arrest of its Managing Director, its business activities in Kerala fell into ruin and before long his shops were closed and the entire staff left the company. There was none to attend to the notices issued by various Officers and the Bank took possession of his buildings and showrooms. The South Indian Bank is alleged to have taken custody of the entire stock and machinery, including computers containing the books of account and other details. 6. Ext.P5 order of assessment for the year 2014-15 dated 16.05.2017, mentions that the dealer neither responded to the notices issued nor appeared for the personal hearing granted on 27.04.2017. Though the order further mentions about one r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sues that arose and are seen to be non-speaking orders, issued without due application of mind. 11. While reverting to the facts of the case to appreciate the twin ingredients, Ext.P8 letter assumes significance. In the said letter, one of the Directors of the petitioner, who is the wife of the Managing Director of the company, had filed an objection stating that they were ready to produce documents to prove export sales, purchase bills of capital goods and local purchase bills to prove the input claim. It was also specifically mentioned that they were unable to extricate the computers in the showroom in which the accounts are kept, and also that they are contacting the bank authorities to release the computers to enable access to the books of accounts. The statement in Ext.P8 finds some credence in the observation of the assessing officer. Ext.P6, indubitably mentioned that all the business places of the dealer are closed down . When the statements of the petitioner, as well as the observations of the assessing officer, are considered in the backdrop of Ext.P2, it becomes lucid that petitioner was in a disadvantageous position during the time when the notices were issued and e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it was held that under different situations and conditions the requirement of compliance of the principle of natural justice vary . 15. Rule 38 of the Kerala Value added Tax Rules, 2005 provides a reasonable opportunity of being heard before completing the best judgment assessment. A ritualistic opportunity of hearing as an empty formality is not what advances the cause of justice. The object of granting an opportunity for hearing is irrefutably to advance the cause of justice. In the circumstances pleaded and argued on behalf of the petitioner, this Court is of the considered view that a reasonable opportunity of hearing was not accorded to the petitioner. 16. While considering the concept of granting an opportunity for hearing, it also assumes significance, as mentioned earlier, that no prejudice would be caused to the revenue if an opportunity of hearing is granted afresh to the petitioner, especially, since the learned Counsel for the petitioner contends that, at present, the petitioner is in a position to contest the case on merits. 17. As regards the second ingredient, this Court notices that the orders of assessment are not speaking orders, since the specific i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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