Kerala High Court
M/S.Ananthapuri Hospitals And vs The Commercial Tax Officer (Luxury Tax) on 22 May, 2013
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
TUESDAY, THE 19TH DAY OF JANUARY 2016/29TH POUSHA, 1937
WP(C).No. 28693 of 2015 (J)
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PETITIONER(S):
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M/S.ANANTHAPURI HOSPITALS AND
RESEARCH INSTITUTE (P) LTD.,
CHAKKAI, THIRUVANANTHAPURAM, PIN - 691 004,
REPRESENTED BY ITS DIRECTOR- DR.A.GOPAL.
BY ADVS.SRI.K.I.MAYANKUTTY MATHER
SRI.R.JAIKRISHNA
SRI.V.SURESH (TRIVANDRUM)
RESPONDENT(S):
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1. THE COMMERCIAL TAX OFFICER (LUXURY TAX),
OFFICE OF THE DEPUTY COMMISSIONER, COMMERCIAL TAXES,
TAXES TOWER, KARAMANA, THIRUVANANTHAPURAM-695 002.
2. THE INTELLIGENCE OFFICER,
SQUAD NO.1, COMMERCIAL TAXES,
THIRUVANANTHAPURAM-695 002.
3. COMMISSIONER,
COMMERCIAL TAXES, KARAMANA,
THIRUVANANTHAPURAM-695 002.
4. DEPUTY COMMISSIONER (INTELLIGENCE),
COMMERCIAL TAXES, KARAMANA,
THIRUVANANTHAPURAM-695 002.
BY GOVERNMENT PLEADER SRI.R.RANJITH
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
19-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
msv/
WP(C).No. 28693 of 2015 (J)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT-P1: TRUE COPY OF THE RETURN FILED BY THE PETITIONER ALONG WITH
THE COUNTER FOIL CHALAN EVIDENCING REMITTANCE OF LUXURY
TAX FOR A.Y.2008-2009 DATED 22.5.2013.
EXHIBIT-P1(A): TRUE COPY OF THE RETURN FILED BY THE PETITIONER ALONG
WITH THE COUNTER FOIL CHALAN EVIDENCING REMITTANCE OF
LUXURY TAX FOR AY-2009-2010 DATED 22.5.2013.
EXHIBIT-P1(B):TRUE COPY OF THE RETURN FILED BY THE PETITIONER ALONG WITH
THE COUNTER FOIL CHALAN EVIDENCING REMITTANCE OF LUXURY
TAX FOR AY-2010-2011 DATED 22.5.2013.
EXHIBIT-P2: TRUE COPY OF THE PENALTY ORDER PASSED BY THE
2ND RESPONDENT (AY-2008-09) DATED 29.5.2015.
EXHIBIT-P2(A): TRUE COPY OF THE PENALTY ORDER PASSED BY THE
2ND RESPONDENT (AY-2009-10) DATED 29.5.2013.
EXHIBIT-P2(B): TRUE COPY OF THE PENALTY ORDER PASSED BY THE
2ND RESPONDENT (AY-2010-11) DATED 29.5.2013.
EXHIBIT-P3: TRUE COPY OF THE COMMON ORDER PASSED BY THE DEPUTY
COMMISSIONER (APPEALS), THIRUVANANTHAPURAM DATED 2.3.2015.
EXHIBIT-P4: TRUE COPY OF THE ORDER IN W.P.(C) 7508/2015 OF THIS HON'BLE
COURT DATED 20.3.2015.
EXHIBIT-P5: TRUE COPY OF THE PENALTY NOTICE ISSUED BY THE
2ND RESPONDENT FOR THE AY-2008-09 DATED 9.7.2015.
EXHIBIT-P5(A): TRUE COPY OF THE PENALTY NOTICE ISSUED BY THE
2ND RESPONDENT FOR THE AY 2009-10 DATED 9.7.2015.
EXHIBIT-P5(B):TRUE COPY OF THE PENALTY NOTICE ISSUED BY THE
2ND RESPONDENT FOR THE AY 2010-11 DATED 9.7.2015.
EXHIBIT-P6: TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN
W.P.(C) NO.7790/2012 DATED 22.2.2013.
EXHIBIT-P7: TRUE COPY OF THE PETITION FILED BY THE PETITIONER BEFORE THE
3RD RESPONDENT DATED 20.7.2015.
EXHIBIT-P7(A): TRUE COPY OF THE REPLY FILED BY THE PETITIONER BEFORE THE
2ND RESPONDENT DATED 27.7.2015.
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WP(C).No. 28693 of 2015 (J)
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EXHIBIT-P8: TRUE COPY OF THE E-MAIL COMMUNICATION ISSUED BY THE COUNSEL
OF THE PETITIONER TO THE 2ND RESPONDENT DATED 30.7.2015.
EXHIBIT-P9: TRUE COPY OF THE PENALTY ORDER PASSED BY THE
2ND RESPONDENT (AY-2008-09) DATED 25.8.2015.
EXHIBIT-P9(A): TRUE COPY OF THE ASSESSMENT ORDER PASSED BY THE
2ND RESPONDENT (AY-2009-10) DATED 25.8.2015.
EXHIBIT-P9(B): TRUE COPY OF THE ASSESSMENT ORDER PASSED BY THE
2ND RESPONDENT (AY-2010-11) DATED 25.8.2015.
RESPONDENT(S)' EXHIBITS:
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NIL
//TRUE COPY//
P.S.TO JUDGE
Msv/
A.K.JAYASANKARAN NAMBIAR, J.
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W.P.(C).No.28693 of 2015
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Dated this the 19th day of January, 2016
J U D G M E N T
The challenge in the writ petition is against Ext.P9 series of penalty orders passed by the 2nd respondent under the Kerala Tax on Luxuries Act in relation to the petitioner for the assessment years 2008-2009, 2009-2010 and 2010-2011. The challenge in the writ petition against Ext.P9 series of penalty orders is essentially that before passing the said orders, the petitioner was not afforded an effective opportunity of hearing. It is therefore contended that the orders impugned vitiated by non-compliance with the rules of natural justice.
2. I have heard the learned counsel for the petitioner and also the learned Government Pleader for the respondents.
3. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find from Ext.P9 series of orders that the petitioner was issued with notices -2- W.P.(C). No. 28693 of 2015 proposing penalty to which he had submitted replies. Thereafter, he was also afforded an opportunity of hearing when he appeared before the officer and put forth some preliminary submissions. He thereafter requested for some more time for filing an additional reply and also for a further hearing. It appears that, this subsequent request for an additional hearing was not acceded to by the respondents. In Ext.P9 series of orders, the 2nd respondent takes note of the request made by the petitioner and then came to a finding that adequate opportunity had already been given to the petitioner to put forth his contentions before the 2nd respondent and it was when the matter was being prolonged at the instance of the petitioner that the 2nd respondent found that the matter could not be kept pending any longer. On a perusal of Ext.P9 series of orders, I do not find the same to be vitiated on account of any non- compliance with the rules of natural justice or on account of any jurisdictional error. In my view the petitioner has an effective alternative remedy against Ext.P9 series of orders by way of filing an appeal against the said orders before the appellate authority under the Kerala Tax on Luxuries Act. I, therefore, dismiss the writ petition in its challenge against Ext.P9 series of orders and relegate the petitioner to his alternate remedy under the Kerala -3- W.P.(C). No. 28693 of 2015 Tax on Luxuries Act.
Counsel for the petitioner would submit that he would require some time to pursue his appellate remedy. Taking note of the said submission of counsel for the petitioner, I direct that the recovery steps for recovery of amounts confirmed against the petitioner by Ext.P9 series of orders shall be kept in abeyance for a period of one month so as to enable the petitioner to pursue his appellate remedy under the Kerala Tax on Luxuries Act.
A.K.JAYASANKARAN NAMBIAR JUDGE mns/19.01.16