Kerala High Court
K.Valsala vs Commercial Tax Officer on 10 April, 2012
Author: Antony Dominic
Bench: Antony Dominic
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
THURSDAY, THE 31ST DAY OF JANUARY 2013/11TH MAGHA 1934
WP(C).No. 2252 of 2013 ()
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PETITIONER(S):
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K.VALSALA, AGED 50 YEARS
M/S. HARITHA METAL INDUSTRIES,KOTHAKURISSI
PALAKKAD DISTRICT.
BY ADVS.SRI.HARISANKAR V. MENON
SMT.MEERA V.MENON
RESPONDENT(S):
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1. COMMERCIAL TAX OFFICER, OTTAPPALAM-679 101.
2. INSPECTING ASST. COMMISSIONER,
DEPARTMENT OF COMMERCIAL TAXES,PALAKKAD-678 001.
BY SR GOVERNMENT PLEADER SHOBA ANNAMMA EAPEN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
31-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC NO.2252/13
APPENDIX
PETITIONER'S EXHIBITS
EXHIBIT P1: COPY OF NOTICE ISSUED BY THE 1ST RESPONDENT DATED 10.4.2012.
EXHIBIT P2: COPY OF ORDER PASSED BY THE 1ST RESPONDENT DATED 27.10.2012.
EXHIBIT P3: COPY OF NOTICE ISSUED BY THE 3RD RESPONDENT DATED
18.12.2012.
//True Copy//
PA to Judge
Rp
ANTONY DOMINIC, J.
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W.P.(C) NO. 2252 OF 2013
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Dated this the 31st day of January, 2013
J U D G M E N T
Petitioner is an assessee under the KVAT Act. In this writ petition, she challenges Ext.P2 order passed against her under Section 25 of the Act.
2. The facts of the case are that, on the basis that the petitioner did not file monthly returns for 2011-12, she was issued Ext.P1 notice under Section 24 of the Act. According to the learned Government Pleader, before the notice was issued, petitioner was called upon to produce the books of accounts which were not produced. Ext.P1 notice is dated 10/4/2012 and it was served on the petitioner on 17/4/2012. Petitioner did not file any reply or produce any document contradicting the allegations in Ext.P1. The petitioner also did not appear before the assessing officer on 24/4/12, the date on which an opportunity of hearing was offered in Ext.P1 notice.
3. Subsequently, the officer who issued Ext.P1 notice was transferred and his successor took charge. Later, the assessment was completed by Ext.P2 dated 27/10/12. Petitioner challenges WPC.No.2252/13 :2 : this order relying on Section 95 of the KVAT Act, which according to the petitioner obliges the authority to give her an opportunity of hearing if there is a change of incumbent in the office of the 1st respondent.
4. Section 95 of the KVAT Act reads thus;
"95. Change of an incumbent of an office- Whenever in respect of any proceedings under this Act, any prescribed authority ceases to exercise jurisdiction and is succeeded by another who has and exercised jurisdiction, the authority or officer so succeeding may continue the proceeding from the stage at which the proceeding was left by the predecessor.
Provided that before proceeding under this section the authority shall give the person affected thereby an opportunity of being heard."
5. A reading of the provision shows that when proceedings are pending and there is a change of officer, the successor can continue the proceedings at the stage where the proceedings were left by his predecessor. As per the proviso, before proceeding under Section 95, the successor shall give the person affected, an opportunity of being heard also. It is relying on the proviso to Section 95 that the learned counsel for the petitioner contends that assessment could not have been completed without affording the petitioner an opportunity of hearing.
6. However, I am unable to agree with the learned counsel. WPC.No.2252/13 :3 : This is a case where the petitioner was issued Ext.P1 notice. The allegations in Ext.P1 were not contradicted by the petitioner by filing any reply or producing any documents. Petitioner did not seek any hearing and she also did not appear before the assessing officer on 24/4/2012. It is in this background that Ext.P2 order was passed.
7. Facts therefore show that, in the circumstances of this case, the only option that was available to the assessing officer was to finalise the assessment based on the material available before him. That apart, the petitioner having not filed any reply or produced any documents, had no contention to urge before the assessing officer. Therefore, I am inclined to think that in the circumstances pointed out, petitioner was not entitled to the benefit of the proviso to Section 95 and in any case the absence of such a hearing has not caused any prejudice to the petitioner.
8. In such circumstances, I do not see anything illegal in Ext.P2 justifying interference in a proceedings under Article 226 of the Constitution of India.
Writ petition is dismissed.
ANTONY DOMINIC, JUDGE Rp