IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 2ND NOVEMBER 2010 / 11TH KARTHIKA 1932 WP(C).No. 32774 of 2010(V) ---------------------------------------- PETITIONER(S): ------------------------ P.VINOD, CHANDINI ENTERPRISES, KONDAYAM HOUSE, PUDUPPALLY STREET, PALAKKAD. BY ADVS. SRI.HARISANKAR V. MENON, SMT.MEERA V.MENON, SRI.MAHESH V.MENON. RESPONDENT(S): --------------------------- 1. SALES TAX OFFICER-IV, IST CIRCLE, PALAKKAD - 678 001. 2. DEPUTY COMMISSIONER OF COMMERCIAL TAXES, PALAKKAD - 678 001. 3. COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM - 695 001. 4. STATE OF KERALA REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. R1 ATO R4 BY SR. GOVERNMENT PLEADER SRI. C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.32774 of 2010 ------------------------------------------- Dated this the 2nd day of November, 2010 J U D G M E N T ---------------------- Petitioner is a dealer engaged in trading of live chicken. Through Ext.P1 order, penalty was imposed on the petitioner under Section 45A of the Kerala General Sales Tax Act (KGST Act) based on the allegations that the petitioner had suppressed turnover during the relevant period which was unearthed from the documents relating to interstate transports effected. The penalty was imposed rejecting the claim of the petitioner that the difference occurred due to mortality and weight loss of live chicken. However, the petitioner was successful in getting Ext.P1 order set aside in revision. Ext.P2 is the proceedings of the Deputy Commissioner setting aside the order imposing penalty, in revision petition filed by the petitioner. 2. The 3rd respondent had initiated proceedings under Section 37 of the KGST Act for revising Ext.P2 order of the Deputy Commissioner. A notice in this regard was issued to the petitioner as per Ext.P5 through which the proposal was communicated and the petitioner was given opportunity to object and also opportunity for hearing on 24.1.2009. Ext.P7 W.P.(C).32774/10-V -2- is the proceedings of the 3rd respondent by which order of the revisional authority was set aside and Ext.P1 order imposing penalty was restored. 3. It is evident from Ext.P7 that on receipt of Ext.P5 notice the petitioner had requested for an adjournment and the matter was posted for hearing on 5.2.2009. According to the petitioner, when the matter was posted before the 3rd respondent on 5.2.2009 the petitioner had engaged a counsel for appearing before that authority. But since the counsel was not in a position to appear on that date, a petition seeking adjournment was submitted before the 3rd respondent as per Ext.P6. It is evident that through Ext.P6 the inconvenience of the counsel was intimated to the 3rd respondent and an adjournment of the hearing was sought for, for a period of three weeks. But in Ext.P7 it is mentioned that, the petitioner had requested for adjournment again and therefore it was presumed that the dealer was not interested in presenting arguments. 4. According to the petitioner, Ext.P7 order is not sustainable on merits and the petitioner was denied of proper opportunity to present his case before the 3rd respondent. Therefore the petitioner seeks a remand of the matter to the 3rd respondent for fresh consideration and disposal. 5. It is evident from Ext.P6 and P7 that the petitioner was not present for hearing before the 3rd respondent when the W.P.(C).32774/10-V -3- matter was considered. It is evident that the petitioner had not submitted any objections to Ext.P5 proposal. Without entering upon any findings on the merits of the case, I am of the view that interest of justice warrants a remand of the matter in order to afford an opportunity to the petitioner to submit objections against Ext.P5 and an effective opportunity of personal hearing. 6. Under the above circumstances, Ext.P7 order is hereby quashed. The 3rd respondent is directed to decide the matter afresh, after affording an opportunity to the petitioner to file objections and an opportunity of personal hearing. It is made clear that the petitioner is at liberty to submit objections to Ext.P5 notice, within 2 weeks from the date of receipt of a copy of this judgment, and shall appear for a personal hearing of the matter before the 3rd respondent as and when the matter is posted for hearing. It should be ensured that the petitioner is co-operating for disposal of the matter at the earliest possible. 7. The 3rd respondent is directed to take a fresh decision in the matter, after complying with the directions contained herein, as expeditious as possible, at any rate within a period of two months from the date of receipt of a copy of this judgment. C.K.ABDUL REHIM, JUDGE. okb