Kerala High Court
Hotel Victory International vs Deputy Commissioner Of State Tax on 16 July, 2025
2025:KER:52896
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
WEDNESDAY, THE 16TH DAY OF JULY 2025 / 25TH ASHADHA, 1947
WP(C) NO. 11125 OF 2021
PETITIONER:
HOTEL VICTORY INTERNATIONAL,
VICTORY SHOPPING COMPLEX, KUNNAKULAM-680 503, THRISSUR
DISTRICT, REPRESENTED BY ITS LEGAL HEIR, SMT.USHA
DAVIS.
BY ADV SRI.TOMSON T.EMMANUEL
RESPONDENTS:
1 DEPUTY COMMISSIONER OF STATE TAX,
SPECIAL CIRCLE, SGST COMPLEX, PUTHOLE, THRISSUR-680
M004.
2 JOINT COMMISSIONER OF STATE TAX,
SGST COMPLEX, PUTHOLE, THRISSUR-680 004.
3 STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.
GP- SAYED MURTHALA THANGAL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
16.07.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) No. 11125 of 2021 -2-
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JUDGMENT
Dated this the 16th day of July, 2025 Petitioner has approached this Court challenging Ext.P8 order of assessment under the KGST Act for the assessment year 2016-17.
2. Petitioner claims to be a proprietary concern running a bar attached hotel. Annual returns were filed as Ext.P1 for the assessment year 2016-17 along with Ext.P2 audited report, and Ext.P4 audited financial statement. On 14.02.2021 Ext.P6 notice was issued by the 1st respondent calling for production of books of accounts for the year 2016-17 and 2017-18. Petitioner contends that Ext.P6 is only a summons calling for production of books and not a pre-assessment notice, to which Ext.P7 reply was filed. Ext.P7 reply was submitted seeking two months time more to produce documents as sought for in Ext.P6, for the reason that the person who is in charge of the accounts of the firm has undergone an operation and is on leave. The case of the petitioner is that, without granting an opportunity as sought for in Ext.P7, by Ext.P8 order dated 31.03.2021 the assessment was completed. Petitioner would submit that before issuing Ext.P8 order of assessment for the year 2016-17 no pre-assessment notice was served as provided in the Proviso to Section 17(3) of the KGST Act, and the assessment was completed without affording an opportunity of being heard. WP(C) No. 11125 of 2021 -3-
2025:KER:52896
3. The learned Government Pleader would submit that the petitioner was asked to produce various details including books of accounts as per Ext.P6 which was not complied by the petitioner. Thereupon, the assessment was completed as per Ext.P8. The learned Government Pleader would further submit that after verifying the documents sought to be produced as per Ext.P6, a pre- assessment notice ought to be issued to the petitioner. Having not produced documents as sought for in Ext.P6, the assessing authority had no other choice but to proceed with the assessment and pass Ext.P8 order.
4. I have heard the rival contentions on both sides.
5. Ext.P6 notice is dated 01.02.2021. In response to the same, Ext.P7 was submitted on 13.02.2021, i.e, within a period of 12 days from receipt of Ext.P6 notice. Valid reasons have been stated in Ext.P7 seeking time to produce the documents sought for as per Ext.P6, since the accountant of the firm has undergone an operation and was on leave for a month. Without giving any opportunity as sought for in Ext.P7, solely taking a contention that the petitioner did not respond to Ext.P6 that Ext.P8 assessment was completed.
6. Taking into consideration the above facts and circumstances, I am of the opinion that some more time ought to have been granted to the petitioner to produce the documents as WP(C) No. 11125 of 2021 -4- 2025:KER:52896 sought for in Ext.P6 before issuance of Ext.P8. In view of the above facts and circumstances, I am inclined to interfere with Ext.P8 and accordingly Ext.P8 is set aside. There will be a direction to the assessing authority/the present officer in-charge, to issue notice to the petitioner, who is the legal heir of the original assessee, in the address shown in the affidavit filed in support of the writ petition i.e, P Usha, wife of Davis K.P., Koothur House, Chairman Nagar, Calicut Road, Kunnamkulam P.O., Thrissur - 680503, Thrissur District as the learned Counsel for the petitioner submits that she is residing in the said address. On receipt of the notice, petitioner shall produce necessary documents sought for as per Ext.P6, and after verifying the documents produced by the petitioner, a pre-assessment notice shall be issued to the petitioner, if the authority is not satisfied with the documents produced by the petitioner, and decide to proceed further. The authority shall afford an opportunity of being heard in the matter.
With the above said direction, the writ petition is disposed of.
Sd/-
VIJU ABRAHAM JUDGE sbk/-
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APPENDIX OF WP(C) 11125/2021
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF ANNUAL RETURN SUBMITTED FOR
2016-17 WITH PROOF OF PAYMENT OF
COMPOUNDED RATE OF TAX, BEFORE 1ST
RESPONDENT.
EXHIBIT P2 TRUE COPY OF AUDIT REPORT IN FORM NO.13
AND 13A UNDER KVAT ACT FOR 2016-17.
EXHIBIT P3 TRUE COPY OF SALES TAX AUDIT IN FORM
NO.50A AND 50B SUBMITTED UNDER THE KGST
ACT FOR 2016-17.
EXHIBIT P4 TRUE COPY OF AUDITED FINANCIAL STATEMENT
FOR 2016-17 SUBMITTED ALONG WITH EXT.P2 AND P3.
EXHIBIT P5 TRUE COPY OF DEATH CERTIFICATE DATED 05.12.2019.
EXHIBIT P6 TRUE COPY OF FORM NO.50 NOTICE CALLING
PRODUCTION OF ACCOUNTS, DOCUMENTS,
REGISTERED, STATEMENTS EXT FOR EXAMINATION 0N 15.02.2021 ISSUED BY 1ST RESPONDENT FOR THE YEARS 2016-17 AND 2017-18.
EXHIBIT P7 TRUE COPY OF E MAIL DATED 03.02.2021 SUBMITTED BEFORE 1ST RESPONDENT AGAINST EXT.P6 FORM NO.50 NOTICE.
EXHIBIT P8 TRUE COPY OF EX PARTY ORDER DATED 31.03.2021 PASSED BY 1ST RESPONDENT FOR 2016-17 WITHOUT ISSUING A PRE ASSESSMENT NOTICE INVITING REASONABLE OPPORTUNITY TO FILE REPLY AND A PERSONAL HEARING.
EXHIBIT P9 TRUE COPY OF REPORTED JUDGMENT OF APEX COURT REPORTED IN 2014 71 VST 110(SC) IN BHIMA JEWELLERY VS. ASSISTANT COMMISSIONER (ASSESSMENT ), KERALA.
EXHIBIT P10 TRUE COPY OF JUDGMENT DATED 25.02.2016 IN WPC NO.6077 OF 2016 PASSED BY THIS HON'BLE COURT ON SIMILAR SET OF FACTS.