IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 WP(C).No. 7168 of 2009(M) ------------------------- PETITIONERS: --------------- 1. M/S. SREE RAMACHANDRAN ENTERPRISES, PAZHAVANGADI STREET EAST FORT, THIRUVANANTHAPURAM, REPRESENTED BY ITS PARTNER. 2. M/S. JEYAM TEX, 37/37, PAZHAVANGADI STREET EAST FORT, THIRUVANANTHAPURAM, REPRESENTED BY ITS PARTNER. 3. M/S. RAMACHANDRAN MATCHING CENTRE, 37/37, PAZHAVANGADI STREET, EAST FORT, THIRUVANANTHAPURAM, REPRESENTED BY ITS PROPRIETOR. 4. M/S. RAMACHANDRAN GARMENTS, 37/37, PAZHAVANGADI STREET, EAST FORT, THIRUVANANTHAPURAM, REPRESENTED BY ITS PROPRIETOR. BY ADV. MR. K.P.DANDAPANI, SENIOR ADVOCATE MR. MILLU DANDAPANI RESPONDENTS: --------------- 1. THE STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARRTMENT OF FINANCE, SECRETARIAT, THIRUVANANTHAPURAM 2. THE COMMISSIONER, COMMERCIAL TAXES, THIRUVANANTHAPURAM. 3. THE DEPUTY COMMISSIONER (INTELLIGENCE) OFFICE OF THE COMMISSIONER, COMMERCIAL TAXES, THIRUVANANTHAPURAM. 4. THE COMMERCIALTAX OFFICER, 3RD CIRCLE, PERURKADA, THIRUVANANTHAPURAM. 5. INTELLIGENCE OFFICER, SQUAD 1, COMMERCIAL TAXES, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER MR. C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P. (C) No. 7168 of 2009 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 3rd day of June, 2009 JUDGMENT The petitioners are before this Court challenging Ext.P3 as well as Exts.P4(a) to P4(f) orders passed by the fifth respondent, whereby huge liability has been fixed on their shoulders towards the penalty under Section 67 of the KVAT Act, pertaining to the assessment years 2007 - 2008 and also 2008 - 2009. The case of the petitioner is that, they did not get sufficient opportunity to submit the relevant records and to substantiate their case before the fifth respondent prior to the finalization of the proceedings. 2. With reference to the counter affidavit filed from the part of the respondents, it is pointed out by the learned Government Pleader that, sufficient opportunity was given to the petitioners, who however did not avail the benefit as clearly stated in paragraph 7 and the petitioners were only eager to have the matter protracted some how or the other. 3. The learned senior counsel appearing on behalf of the petitioners submits that, belligerent attitude being taken by the 5th respondent, without any regard to the true state of affairs, who conducted the surprise inspection in the godowns of the petitioners on 18.8.2008, despite the fact that the aforesaid four godowns as referred to paragraph 2 of the Writ Petition were already declared by the WP (C) No. 7168 of 2009 : 2 : petitioners before the departmental authorities on 18.8.2008 at 10.25 A.M. (as such declaration could not be effected on the previous day, being Sunday) was only to harass the petitioners as the inspection was done at 11.30 A.M. i.e. after declaration of the godowns and as to the storage of the materials inside, in view of the estimated sale for in the Onam season. 3. It is also brought to the notice of this Court by learned senior counsel appearing for the petitioners, that because of the attitude and approach being taken by the 5th respondent, an application has been filed by the petitioner before the second respondent to transfer the case to the Authority in Trichur. Admittedly, the second respondent passed Ext.P3 order, whereby the request was turned down on 23.1.2009 and stated as served to the petitioners on 4.2.2009. This being the position, according to the petitioners, they got hardly two weeks to respond to the notice issued by the 5th respondent and did not get sufficient opportunity to substantiate their case. 4. It is true, that the petitioners have alternate remedy by way of appeal. But the question to be considered is whether the petitioners should be driven to the said course, if the case put forth on their part as to the loss of sufficient opportunity and violation of the principle of natural justice turns to be acceptable. If the case put forth by the petitioners in this regard is held as sustainable by the “appellate authority”, the course open will natural by be a 'remand' after setting WP (C) No. 7168 of 2009 : 3 : aside the impugned order, which in turn will attract further time. The particular circumstances in this case as adverted to in this Writ Petition, suggest that the petitioners were under the firm belief that, they would be getting sufficient time, after consideration of the petition preferred by them for transferring the proceedings to Trichur, which request was however declined by the order passed by the second respondent by the end of of January, 2009 and served to the petitioners on 4.2.09. 5. Considering the sequence of events, this Court finds it fit and proper to give one more opportunity to the petitioners to substantiate the true state of affairs before the assessing authority. As such, the impugned orders Ext.P3, Exts.P4(a) to P4(f) are set aside and the 5th respondent is directed to reconsider the matter after giving a fresh opportunity of hearing to the petitioners to substantiate their case by producing all the relevant materials. The petitioners shall produce all such materials before the 5th respondent within a period of two weeks from the date of receipt of copy of this judgment. On such an event, the 5th respondent shall consider the matter and finalize the same within a further period of one month. The Writ Petition is disposed of accordingly. P. R. RAMACHANDRA MENON, JUDGE kmd