IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH THURSDAY, THE 12TH JUNE 2008 / 22ND JYAISHTA 1930 WP(C).No. 17471 of 2008(E) ---------------------------------------------- PETITIONER ------------------ M/S. JYOTHY LABORATORIES LTD., KADANASSERY.P.O, THRISSUR DT. REP. BY ITS AUTHORISED SIGNATORY T.V. THILAKAN, SR. ACCOUNTS OFFICER, JYOTHY LABORATORIES LTD. BY ADV. SRI.G.SHIVADASS SRI.SHAJI THOMAS PORKKATTIL SRI.T.V.VINU RESPONDENTS: ------------------------ 1. STATE OF KERALA, REP. BY THE SECRETARY, COMMERCIAL TAXES, GOVERNMNET OF KERALA, TRIVANDRUM. 2. COMMISSIONER OF COMMERCIAL TAXES, DEPARTMENT OF COMMERCIAL TAXES, TRIVANDRUM. 3. COMMERCIAL TAXES (AA), DEPARTMENT OF COMMERCIAL TAXES, THRISSUR. 4. ASSISTANT COMMISSIONER (ASSESSMENT) COMMERCIAL TAXES, SPECIAL CIRCLE, THRISSUR. 5. DEPUTY COMMISSIONER (APPEALS), DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM DT. BY GOVERNMENT PLEADER SHRI C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 17471 OF 2008 E -------------------------------------- Dated this the 12th June, 2008 JUDGMENT Petitioner calls in question Ext.P3. Ext.P3 is an assessment order passed under the Kerala Value Added Tax Act, 2003. It is dated 21.4.2008. 2. Briefly put, the case of the petitioner is as follows: Petitioner, a Company registered the Companies Act, is engaged in making and selling of various products including "Ujala Supreme", "Ujala Stiff & Shine", "Maxo Mosquito Coils" etc. It is their case that proceedings were initiated for the assessment year 2006 - 2007. Ext.P1 is a notice issued under the Kerala Value Added Tax Act, 2003 proposing to reject the returns filed by the petitioner for the said year. It is the case of the petitioner that when Ext.P1 notice was issued, the documents relating to the same were not accessible by the petitioner as the same were locked in the petitioner's factory at Panniserry as a result of strike by the workers. It is the further case of the WPC. 17471/08 E 2 petitioner that the petitioner filed reply explaining the same. However, the complaint is that an order is passed demanding differential tax of Rs.16,90,89,251/=, without taking into consideration the reason stated by the petitioner in the reply and without giving the petitioner an opportunity of being heard. Petitioner has attempted in the Writ Petition to point out that the order is unsustainable. Petitioner has also sought to draw support from Exts.P4(a) and Ext.P4(b) Orders. Ext.P4(a) is an order of this Court passed in a Writ Petition filed by the petitioner seeking police protection in the light of the troubles which had arisen in the factory of the petitioner. Ext.P4(b) is a judgment of this Court confirming the interim order and disposing the Writ Petition. 3. Heard the learned counsel appearing for the petitioner and also the learned Government Pleader. Counsel for petitioner would submit that this is a case where a perusal of the pre- assessment notice and the order would show the grave injustice WPC. 17471/08 E 3 that the petitioner is put to. It is pointed out that all these are done without affording an opportunity of hearing to the petitioner and what is more, he contends that this was done after the petitioner pointed out its difficulties before the Assessing Officer by way of Ext.P2. It is pointed out that even though the petitioner had obtained an order from this Court as Ext.P4 directing grant of police protection, petitioner could not enter the factory premises and though Ext.P1 pre-assessment notice was dated 28.1.2008, it came to be received by the petitioner on 28.2.2008. Having regard to the circumstances prevailing, petitioner was disabled from devising a proper reply with reference to records which were kept in the factory to which there was no access, it is submitted. It is pointed out that the records also could not be produced for consideration of the Assessing Officer in these circumstances. It is further pointed out that all these together would suffice to make out a good case of breach of the principles of natural justice, particularly in the WPC. 17471/08 E 4 nature of the assessment made against the petitioner, which is a demand in a huge sum of more than Rs.16 Crores. Counsel for petitioner would, therefore, makes a plea for setting aside the order and for reconsideration after affording an opportunity of being heard. 4. Learned Government Pleader, on the other hand, would submit that this is not a case where this Court should interfere under Article 226 of the Constitution of India and the petitioner should be relegated to pursue the remedy of an Appeal. He points out that having regard to the undisputed dates, it could not be said that an opportunity was not given by the Authority. 5. I am not inclined to interfere in this matter under Article 226 of the Constitution of India. It is to be noted that it is undisputed that the petitioner was issued with a notice dated 28.1.2008 which again, without the danger of any dispute being raised, the petitioner received on 28.2.2008. Petitioner has certainly devised Ext.P2 reply. In Ext.P2 reply, what is WPC. 17471/08 E 5 stated essentially is that they are disabled from responding in view of the circumstances prevailing in the factory and the petitioner sought some time to give their reply. This reply is taken note of by the Authority when he passed Ext.P3 order. It is pertinent to note that Ext.P2 reply is undated. The fact that it is undated is borne out by reference to the same in Ext.P3 order also. It is submitted that the reply was on 14.3.2008. It is pertinent that the assessment order was passed on 21.4.2008 which means that the Assessing Officer did not proceed to pass an order in haste disregarding the request of the petitioner. In fact, the request of the petitioner in Ext.P2 which is undated and which the petitioner claims to have been given on 14.3.2008 was for grant of some time. The order was passed after nearly five weeks. It is also important to bear in mind when the plea of natural justice is advanced, to see the attendant facts. Petitioner obtained an order of police protection from this Court vide Ext.P4 in August, 2007. Therein, the petitioner raised a WPC. 17471/08 E 6 complaint that the interim order of police protection was being flouted. The Court has, in Ext.P4, after noting his complaint, made it clear that the remedy of the petitioner lay in moving in contempt. Ext.P4 (a) interim order was made absolute by Ext.P4 (b). Ext.P4 (b) Judgment is in November, 2007. Having regard to the dates of Exts.P4(a) order and P4(b) Judgment, it may not be open to the petitioner to contend that the petitioner was not in a position to get the custody of the records situated in the factory to file objection and to produce the records before the Authority. 6. The grant of an opportunity to substantiate the objections when the Assessing Authority proposes to reject the objections is too well established to require any reiteration. But, what the petitioner seeks in this case is a right of hearing without filing any objection. I do not think that the principles of natural justice should be stretched to that extent, in that, even without filing any objection to the proposal, the petitioner should be afforded an opportunity of being heard. Having regard to all these circumstances, I decline jurisdiction under WPC. 17471/08 E 7 Article 226 of the Constitution of India, without prejudice to the right of the petitioner to canvass the legality of the impugned order before the statutory authority. Without prejudice to the right of the petitioner to approach the appellate authority, the Writ Petition is dismissed. K. M. JOSEPH, JUDGE kbk.