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2016 Supreme(Online)(KER) 2841
HIGH COURT OF KERALA
A.M.SHAFFIQUE, J
KUNJACHAN K A – Appellant
Versus
ASSISTANT COMMISSIONER (AUDIT ASSESSMENT – Respondent
WRIT PETITION (CIVIL) 38609/2016
Compliance with principles of natural justice and availability of appellate remedies ensures due process in assessment procedures.
Headnote:
Natural Justice - Assessment Procedure - KVAT Act - Section 95 - The court examined whether the principles of natural justice were violated in the assessment process. It highlighted the importance of providing an opportunity for hearings and the implications of compliance with statutory provisions.
Fact of the Case:
The petitioner challenges an order related to the assessment year 2014-15, claiming that the order was made in violation of natural justice principles due to lack of proper hearing before the order was issued.
Finding of the Court:
The court found that the petitioner was given notice and had the opportunity to be heard. Despite the petitioner's claims of not receiving a fair hearing, the court concluded that the interests of justice did not warrant bypassing the appellate process.
Issues: Whether the order was issued without providing the petitioner a proper opportunity for hearing.
Ratio Decidendi: The court determined that for an order to be challenged outside the appellate framework, there must be a clear violation of natural justice, which was not established in this case.
Final Decision: Writ petition dismissed with the right to appeal reserved.
JUDGMENT
Petitioner has approached this Court challenging Ext.P6 order in respect of assessment year 2014-15 and for other consequential reliefs. The main contention urged by the petitioner is that the order is passed in gross violation of principles of natural justice, insofar as no opportunity was given to the petitioner for hearing.
2. On the other hand, learned Government Pleader submits that notice of hearing was given and the petitioner through his representative has appeared and after hearing, the matter was decided. Learned Government Pleader also produced a copy of the letter dated 9.9.2016 issued by the petitioner to the Assistant Commissioner (Audit Assessment), thanking the Commissioner for granting personal hearing on 9.9.2016. This letter was issued pursuant to a notice under Section 95 of the KVAT Act by which officer had given an opportunity for a personal hearing on 9.9.2016.
3. Petitioner has filed an additional affidavit inter alia stating that Sri.Balachandran, who has been attending the audit assessment proceedings, filed a reply to the first respondent on 29.8.2016. Further it was mentioned that the petitioner was alerted by his lawyer about the notice and reply dated 3.9.2016 and 9.9.2016 only on 14.12.2016. Petitioner further submits that there was no hearing on 9.9.2016 and the statement mentioned in the letter dated 9.9.2016 happened to be depicted only as required by the first respondent. Learned counsel for the petitioner submits that a notice under Section 95 was issued when there is change in officer and therefore it cannot be treated as a valid notice for a personal hearing. Petitioner also enclosed an affidavit of Sri.C.Balachandran narrating the aforesaid facts.
4. Learned Government Pleader however submits that there was no change in officer and the notice was issued and orders had been passed by the very same officer.
5. The question to be considered is whether the order had been passed without hearing the petitioner. Learned counsel for the petitioner submits that the only requirement was to verify the Form 'F' before finalising the audit assessment. This aspect of the matter had not been properly dealt with by the officer, which clearly indicates that there was no hearing.
6. There is no dispute about the fact that an appellate remedy is available to the petitioner. In order to bypass the appellate remedy, it ought to be shown that there is violation of principles of natural justice or that a patent illegality had been committed warranting interference by this Court. Insofar as the petitioner himself has admitted that he was heard on 9.9.2016, there is no reason to take a different view as the matter stands now. However, such issues can as well be projected before the appellate authority and the petitioner can insist for verification of Form F in order to finalise audit assessment. Petitioner has also a contention that the assessment has been made on grounds which had not reflected in the pre-assessment notice.
Hence, this writ petition is dismissed, reserving right of the petitioner to prefer an appeal. The appeal shall be filed within a period of two weeks from today and until such time, the recovery proceedings shall be kept in abeyance. All contentions urged by the petitioner shall be considered in accordance with the procedure prescribed.
