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2013 (2) TMI 161 - HC - VAT and Sales TaxNon filing of monthly returns - KVAT Act - the officer who issued Ext.P1 notice was transferred and his successor took charge - assessee contested against assessment completed by successor without affording the petitioner an opportunity of hearing - invoking benefit of Section 95 of the KVAT Act - Held that - This is a case where the petitioner was issued Ext.P1 notice & 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 also did not appear before the assessing officer on 24/4/2012 & in this background that Ext.P2 order was passed. The only option that was available to the AO was to finalize the assessment based on the material available before him as the petitioner having not filed any reply or produced any documents, had no contention to urge before the assessing officer - 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 - wit dismissed.
Issues:
Challenge to order passed under Section 25 of the KVAT Act based on non-filing of monthly returns for 2011-12; Interpretation of Section 95 of the KVAT Act regarding change of incumbent in office and opportunity of hearing. Analysis: The petitioner, an assessee under the KVAT Act, challenged an order (Ext.P2) passed against her under Section 25 of the Act due to not filing monthly returns for 2011-12. The petitioner was issued a notice (Ext.P1) under Section 24 of the Act for not producing books of accounts despite being called upon to do so. The notice was dated 10/4/2012 and served on 17/4/2012. The petitioner did not reply to the notice, produce any documents, or appear before the assessing officer on the scheduled date of 24/4/2012. The assessment was completed by Ext.P2 on 27/10/12 after a change of officer took place. The petitioner relied on Section 95 of the KVAT Act, arguing that the assessment could not have been completed without affording her an opportunity of hearing in case of a change of incumbent in the office of the assessing officer. The court examined Section 95 of the KVAT Act, which allows the successor officer to continue proceedings from the stage left by the predecessor in case of a change of incumbent, provided the affected person is given an opportunity of being heard. The court noted that the petitioner did not contest the allegations in Ext.P1, did not seek a hearing, and did not appear before the assessing officer. Therefore, the court held that the assessing officer was justified in finalizing the assessment based on the available material, as the petitioner had not presented any contentions or documents. The court concluded that the petitioner was not entitled to the benefit of the proviso to Section 95, and the absence of a hearing did not prejudice the petitioner. In light of the circumstances where the petitioner did not engage in the process by filing a reply or producing documents, the court found no illegality in the Ext.P2 order to warrant interference under Article 226 of the Constitution of India. Consequently, the writ petition challenging the order was dismissed.
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