IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 2ND JUNE 2010 / 12TH JYAISTHA 1932 WP(C).No. 14332 of 2010(N) -------------------------- PETITIONER(S): --------------- SUZION INFRASTRUCTURE SERVICE LTD.,NOW AT THOTTADAYIL, 523/V, NEAR SBI, P.O. AGALI, PALAKKAD-678581,REP. BY ITS MANAGER(CORPORATE- TAXES DEPARTMENT)CA CHANDRAKISHOR BAJPAI, R/AT 156 SIGA'S ABODE,4TH CROSS,ST BED LAYOUT,4TH BLOCK, KORMANGALA, BANGALORE - 560 034. BY ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE SRI.MILLU DANDAPANI RESPONDENT(S): --------------- THE COMMERCIAL TAX OFFICER (W.C), OFFICE OFD THE DEPUTY COMMISSIONER, COMMERCIAL TAXES, ERNAKULAM, KOCHI - 682 015. BY SR. GOVT. PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMACHANDRA MENON, J --------------------------- W.P(C) No.14332 of 2010-N ---------------------------- Dated this the 2nd day of June, 2010. J U D G M E N T Whether a 'composite notice' is enough to complete the escaped assessment of turnover under Section 25(1) of the KVAT Act inviting objections, if any, and also mentioning about the 'right to be heard' so as to satisfy the requirement under the 'first proviso' to the said provision, is the point of dispute. 2. The petitioner is challenging the correctness and sustainability of Ext.P3 order passed by the respondent under Section 25(1) of the KVAT Act, whereby huge liability is stated as mulcted on the shoulders of the petitioner; without giving an opportunity of hearing which is contrary to the statutory prescription under Section 25(1) of the KVAT Act and hence is under challenge in this Writ Petition. 3. The sequence of events shows that the petitioner, who is engaged in executing works contract, has been submitting the returns as prescribed under the relevant provisions of law. Subsequently, on verification of the returns in respect of the W.P(C) No.14332 of 2010-N 2 assessment year 2007-08, the respondent observed some discrepancies and accordingly, Ext.P1 notice dated 7.1.2010 was issued, proposing to complete the assessment on ‘best judgment basis’, inviting objections from the petitioner. Immediately on receipt of Ext.P1, the petitioner submitted Ext.P2 statement, also pointing out that Ext.P1 notice was served to the petitioner only on 20.1.2010. Thereafter the respondent proceeded with further steps and passed Ext.P3 order dated 25.3.2010, which is impugned in this Writ Petition. 4. The respondent has filed a counter affidavit stating that the allegation as to the denial of an opportunity of hearing is thoroughly wrong and misconceived and that there is no violation of Section 25(1) of the KVAT Act. It is also pointed out in para 4 of the counter affidavit that the case projected from the part of the petitioner is not liable to be entertained, more so, since the petitioner has failed to furnish Form 20H certificate duly counter signed by the Assessing Authority of the Sub Contractor. The other factual particulars with regard to the merits are also explained therein; stating that the impugned order was passed in conformity W.P(C) No.14332 of 2010-N 3 with the statutory prescription. 5. Section 25(1), reads as follows: “Where for any reason the whole or any part of the turnover of business of a dealer has escaped assessment to tax in any year (or return period) or has been under assessed or has been assessed at a rate lower than the rate at which it is assessable or any deduction has been wrongly made therefrom, or where any (input tax or special rebate) credit has been wrongly availed of, the assessing authority may, at any time within five years from the last date of the year to which the return relates, proceed to determine, to the best of its judgment, the turnover which has escaped assessment to tax or has been under assessed or has been assessed at a rate lower than the rate at which it is assessable or the deduction in respect of which has been wrongly made or (input tax or special rebate) credit that has been wrongly availed of and assess the tax payable on such turnover or disallow the (input tax or special rebate) credit wrongly availed of, after issuing a notice on the dealer and after making such enquiry as it may consider necessary: Provided that before making an assessment under this sub-section the dealer shall be given a reasonable opportunity of being heard: Provided further than where the escapement is due to the application of incorrect rate of tax, no assessment under this sub-section shall be made where the dealer files revised return and pays the tax which has escaped assessment along with interest under sub-section (5) of Section 31 and thrice the interest as settlement fee. W.P(C) No.14332 of 2010-N 4 Mr.K.P.Dandapani, the learned Senior Counsel appearing for the petitioner submits that, after issuance of the notice under Section 25(1), it is very much mandatory on the part of the assessing officer, to have heard the assessee; in the absence of which, the entire proceedings are liable to be declared as null and void. In the instant case, after issuance of Ext.P1 notice, absolutely no reference is made in the impugned order, as to the hearing held in this regard; submits the Senior Counsel. 6. The learned Government Pleader appearing for the respondent submits that the factual position is very much discernible from Ext.P1. It was stated therein that the objections were to be filed within 15 days of the receipt of the notice; further mentioning that the assessee was at liberty to have an opportunity of being heard on any day in the meanwhile. 7. It is not disputed that Ext.P1 notice, though dated 7.1.2010 was served upon the petitioner only on 20.1.2010. It is further revealed from para 7 of the counter affidavit that the petitioner filed a letter dated 3.2.2010 seeking for an adjournment till 17.2.2010 and it was accordingly, that the objection dated 10.2.2010 was filed before the respondent on 17.2.2010 (referred W.P(C) No.14332 of 2010-N 5 to as the second item in Ext.P3). It is contended from the part of the respondent that, till date, the assessee had not turned up before the respondent for personal hearing, despite the opportunity given as mentioned in Ext.P1, which hence is sought to be sustained. 8. Going by the admitted facts and figures or rather the undisputed aspect projected from the pleadings on record, it is crystal-clear that, after issuance of Ext.P1 notice, the petitioner was not actually heard by the respondent before passing the impugned order. The only case put forth by the respondent is that, by virtue of the stipulation in Ext.P1, the petitioner was at liberty to submit objection and to have heard on any date as mentioned therein. Admittedly, the period for submitting the reply was extended and it was accordingly, that the reply dated 10.2.2010, stated as submitted on 17.2.2010, was also considered by the authority before passing the impugned order. In view of the specific stipulation under the ‘first proviso’ to Section 25(1), it cannot be a matter of dispute that the party concerned has to be given an opportunity of hearing before any assessment. 9. In the instant case, issuance of Ext.P1 notice alone is not sufficient with regard to the satisfaction of the legal requirement as W.P(C) No.14332 of 2010-N 6 above. In view of the specific mandate as contemplated under the statute, ie to have an opportunity of hearing after issuance of notice, it was very much mandatory on the part of the respondent to have served a notice specifying the date and time of hearing, thus to enable the party concerned to substantiate the position with reference to the pleadings. Ext.P1 notice mentioning as to the right to file objection and also as to the right for hearing is rather a 'composite one'; which by itself may not serve the purpose always. 10. The requirement of issuing notice on the dealer as stipulated under Section 25(1) of the KVAT Act is the 'pre-requisite' to enable the assessing authority to proceed to determine the tax to the best of its judgment. On receipt of the notice, the assessee is at liberty to explain the position and if the explanation is satisfactory, the assessing authority may not proceed further and the matter may be closed. If the explanation is not satisfactory, then the question comes, as to the necessity to pass an assessment under sub section (1) of Section 25. It is at this juncture, the statute mandates that the dealer shall be given a reasonable opportunity of being heard before making an assessment under the above sub section. This being the position, the primary question to be considered is whether the W.P(C) No.14332 of 2010-N 7 explanation offered in response to the notice is satisfactory or not. Otherwise, the very purpose of the 'proviso' as to the right to be heard is rather otiose/meaningless. 11. If the assessee chooses to appear before the concerned respondent on the last day or on the penultimate day specified for filing objections, the party is still having the right to be heard. Similarly, the date and time chosen by the assessee may not be suitable or convenient to the dealing authority; who may not be available or otherwise engaged in connection with other priority works. Equally important is to note that the assessee can’t be made to wait right from the morning till evening; which may lead to quite adverse and arbitrary consequences. Clarity shall loom large, over obscurity/vagueness. 12. In view of the above observations, this Court finds that the stipulation in Ext.P1 notice, that the party was at liberty to have hearing on any date, within the time stipulated for submitting the statement of objections, is not enough to meet the requirement under the 'first proviso' to Section 25(1). It is made clear that, after receipt of the objection/reply to the show-cause notice, the respondent is duty bound to give an effective opportunity of W.P(C) No.14332 of 2010-N 8 hearing, as to the pleadings brought on record, so as to sustain the contentions; mentioning the date, time and place of hearing in crystal-clear terms. 13. Ext.P3 does not stand the test of law and the same is set aside. The respondent is directed to consider the matter afresh, after serving a notice of hearing to the petitioner as aforesaid and the proceedings shall be completed in accordance with law, as expeditiously as possible, at any rate within two months from the date of receipt of a copy of this judgment. The Writ Petition is disposed of. Sd/- P.R.RAMACHANDRA MENON JUDGE //True Copy// P.A to Judge ab