IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 29TH NOVEMBER 2011 / 8TH AGRAHAYANA 1933 WP(C).No. 31068 of 2011(G) --------------------------------------- PETITIONER: ------------------- M/S.RUBCO HUAT WOODS (PVT.)LTD., CHONADAM, THALASSERY, A PRIVATE LIMITED COMPANY, REPRESENTED BY ITS GENERAL MANAGER, SRI.SURESH BABU. BY ADVS. SRI.E.P.GOVINDAN, SMT.G.DEEPA. RESPONDENTS: ------------------------ 1. THE COMMERCIAL TAX OFFICER, SECOND CIRCLE, COMMERCIAL TAXES, THALASSERY - 670 002. 2. THE DY.COMMISSIONER, COMMERCIAL TAXES, KANNUR - 670 001. 3. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM - 695 001. R1 TO R3 BY GOVT. PLEADER SMT. SHOBA ANNAMMA EAPEN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/11/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.31068/2011-G: APPENDIX PETITIONER'S EXHIBITS:- EXHIBIT-P1. TRUE COPY OF THE REVISED ASSESSMENT ORDER PASSED BY THE FIRST RESPONDENT. EXHIBIT-P2. TRUE COPY OF THE PENALTY ORDER DT.19.08.2011 PASSED BY THE FIRST RESPONDENT. EXHIBIT-P3. TRUE COPY OF THE REPLY DT.2.9.2011 FILED BY THE PETITIONER. EXHIBIT-P4. TRUE COPY OF THE NOTICE DT.20.7.2011 ISSUED BY THE FIRST RESPONDENT. EXHIBIT-P5. TRUE COPY OF THE AUDIT REPORT FOR THE YEAR 2010-11. EXHIBIT-P6. TRUE COPY OF THE RETURN FOR THE MONTH OF JUNE, 2011. EXHIBIT-P7. TRUE COPY OF THE ACKNOWLEDGEMENT GIVEN BY THE FIRST RESPONDENT FOR THE RETURN. EXHIBIT-P7(a).TRUE COPY OF THE ACKNOWLEDGEMENT GIVEN BY THE RESPONDENT FOR PAYMENT OF TAX. EXHIBIT-P8. TRUE COPY OF THE DETAILED LIST SHOWING THE AMOUNT DUE FROM VARIOUS AGRENCIES. //TRUE COPY// P.A. TO JUDGE Prv. S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.31068 of 2011 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of November, 2011 J U D G M E N T The petitioner challenges Ext.P1 assessment order and Ext.P2 penalty order. For seeking redressal through a writ petition against Exts.P1 & P2 orders without resorting to the alternate remedy by way of appeal as provided under the Kerala Value Added Tax Act, the petitioner submits that the petitioner has a very good case on merits and that the petitioner had not been given an opportunity of being heard. 2. I have heard the learned Government Pleader also. 3. The questions on merits can be considered by the appellate authority as well and that is no ground to seek a remedy under Article 226 of the Constitution of India by passing the alternate remedy by way of appeal. But if the petitioner has not been given an opportunity of being heard as contended by the petitioner, the petitioner is certainly W.P.(C)No.31068 of 2011 -2- entitled to maintain a writ petition challenging the impugned orders. But in Ext.P1 order, the assessing authority has held thus: “Hence a notice proposing to assess on a total and taxable turnover for the tune of Rs.2,18,83,335.00 for the month of June 2011 was issued and given an opportunity of being heard in the matter on 26.07.2011 or within 5 days of receipt of this notice. The said notice was duly served on the dealer on 22.07.2011. But the dealer tried the objection on 18.08.2011 which is received very late. However the objection petition has been considered favorably.” The petitioner's objections have been specifically extracted in Ext.P1 order also. The petitioner did not seek a hearing after filing the objections belatedly also. The petitioner would contend that such a hearing is not the one contemplated under the statute. According to them, after filing of the objections, the petitioner should be given an opportunity of being heard even if the petitioner has not asked for an opportunity of being heard. The petitioner relies on a decision of a learned Single Judge of this Court in W.P.(C) No.6989/2011 as well as the judgment of a learned Single Judge of this Court in Suzion Infrastructure Service Ltd v. Commercial Tax Officer W.P.(C)No.31068 of 2011 -3- (W.C), Commercial Taxes, Kochi [2010] 35 VST 451 (Ker), in support of that contention. 4. But the learned Government Pleader submits that in the appeal against the judgment in W.P.(C) No.6989/2011, a Division Bench of this Court has held otherwise. The learned Government Pleader submits that, in that judgment, the Division Bench has held that once an opportunity of being heard has been offered to the assessee at the time of filing objections if the petitioner has not availed of that opportunity by seeking a further posting for hearing, the petitioner is not entitled to be heard. 5. I am inclined to agree with the learned Government Pleader. In W.A.No.1370/2011 a Division Bench of this Court has held thus in paragraph 2: 2. The question whether a personal hearing is required on the written reply filed is a matter of choice of the dealer against whom proceeding is initiated under Section 25. Therefore, on receipt of notice under Section 25 the dealer is free to file detailed reply, produce documentary evidence and statement of accounts in support thereof and request the officer to consider his written objections and documents and decide the matter. On the other hand, if the dealer wants an opportunity of personal hearing to explain his stand as stated in the written reply and accounts and evidence to the officer he is free to ask for it. In this case, it is seen that the respondent W.P.(C)No.31068 of 2011 -4- inspite of given a specific opportunity of filing written reply and for a hearing on the date of filing the reply did not opt for a personal hearing. If the respondent was not able to appear for personal hearing on the date of filing the reply it was absolutely open to him to request the officer to give a posting date for hearing him. However, on going through the reply extracted above, we notice that inspite of the specific opportunity granted for hearing the respondent has neither availed nor requested for a posting for hearing. On the other hand, he left it to the officer to decide the matter after considering his objections filed in writing. We, therefore, do not find any justification for the Single Judge to interfere with the assessment order on the ground of violation of natural justice. The only remedy available to the respondent against the assessment is to file an appeal and contest the matter before appellate authority.” 6. In this case, in the pre-assessment notice the petitioner has been given an opportunity of being heard on the date of filing of the objections. The petitioner has filed objections very belatedly. In their objections, the petitioner has not sought for a further opportunity of being heard. Same is the case with Ext.P2 order on penalty also. Therein also the authority who imposed punishment has held thus: “Hence the assessment was completed for the month of June 2011 demanding the tax due of Rs.21,19,973.00 as per this office proceedings even No. dated 19.08.2011. According to the provision 67 (1) (c) of KVAT Act, the penalty should be imposed the double the tax due demanded for the month hence a notice proposing to imposing penalty of Rs.42,39,946/- was issued and given an opportunity of being heard in the matter on or before 26.07.2011 or in the 5 days or receipt of this notice. Even though the notice accepted by the dealer on 22.07.2011, the dealer has not filed the objection within the time already allowed. W.P.(C)No.31068 of 2011 -5- But the dealer filed objection dated 18.08.2011 state that maximum penalty can be imposed only at Rs.10,000/- and requested that the notice proposing to impose penalty may be dropped.” The petitioner did not even ask for an opportunity of being heard in the objections. Therefore the Division Bench decision in W.A. No.1370/2011 squarely applies to both Exts.P1 & P2. Therefore, I am of opinion that the petitioner has not made out a case for entertaining this writ petition bypassing the alternate remedy by way of appeals against the impugned orders. Therefore, without prejudice to the right of the petitioner to challenge the impugned orders in appeals, this writ petition is dismissed. If the petitioner files the appeals within two weeks, the same shall be entertained as filed within time. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/