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2013 Supreme(Online)(KER) 1035
HIGH COURT OF KERALA
ANTONY DOMINIC, J
M/S CLASSIC STEEL TRADERS – Appellant
Versus
COMMERCIAL TAX OFFICER, 2ND CIRCLE, KALAMASSERY – Respondent
WRIT PETITION (CIVIL) 3999/2013
An assessment order must not be made without affording a party an opportunity for a personal hearing, as per principles of natural justice.
Headnote:
Hearing - KVAT Act - Section 25(1) - The court highlights the necessity of providing a personal hearing before finalizing any assessment, setting aside an order due to lack of proper opportunity for the petitioner.
Fact of the Case:
The petitioner contested the assessment based on a notice issued under the KVAT Act, claiming they were not given an opportunity for a personal hearing, despite assertion to the contrary by the Government Pleader.
Finding of the Court:
The court found that there was no evidence to support the Government Pleader's claim that the petitioner was heard before the order was passed, thus siding with the petitioner's contention.
Issues: Whether the petitioner was afforded a proper opportunity for a personal hearing before the assessment order was passed under the KVAT Act.
Ratio Decidendi: Due process mandates that the petitioner must be given an opportunity to be heard before any assessment decision is made; lack of evidence supporting prior hearing rendered the assessment invalid.
Final Decision: The court set aside the assessment order and directed a personal hearing.
JUDGMENT
Petitioner is an assessee under the KVAT Act. They were issued Ext.P4 notice under Section 25(1) of the Act proposing to complete the assessment for the year 2009-10. After obtaining extension of time, they filed Ext.P5 reply. In that reply, they specifically made a request for a personal hearing. Subsequently, Ext.P6 order of assessment was passed stating that the petitioner was heard. It is challenging Ext.P6 order, petitioner has filed this writ petition contending that they were not afforded an opportunity of hearing and that the statement to the contrary contained in Ext.P6 is incorrect.
2. In view of the above contention raised in the writ petition, case was adjourned with a direction to the learned Government Pleader to obtain instructions in the matter. According to the learned Government Pleader, Ext.P5 reply was received in the office on 21.11.2012 and that before Ext.P6 order was passed, the assessee, along with their accountant, appeared before the 1st W.P.(C).3999/13 respondent and were heard. It is stated that it was thereafter that Ext.P6 order was passed.
3. However, although this assertion is made, there is no record whatsoever to prove the aforesaid contention of the Government Pleader to be factually correct. In the light of the above and on account of the contention raised by the counsel for the petitioner, I am unable to accept the case of the Government Pleader that the petitioner was heard before Ext.P6 order was passed.
4. In such circumstances, Ext.P6 order will stand set aside and the petitioner is directed to appear before the 1st respondent at 11.00 am on 27.2.2013, when the 1st respondent shall hear the petitioner and pass orders in the matter, in accordance with law.
5. Petitioner will produce a copy of this judgment along with a copy of the writ petition before the 1st respondent for compliance.
Writ petition is disposed of.
