2021 (4) TMI 176 - HC - VAT and Sales Tax

Maintainability of petition - availability of efficacious and alternative remedy of appeal - service of notice - purchase of taxable goods was not covered by valid purchase bills - principles of natural justice - HELD THAT - The entire gamut of the pleadings in the writ petition as well as the rejoinder is aimed at projecting how the petitioner was not served with pre-audit, pre-assessment show cause notices and other notices and thereby how the petitioner was deprived the valuable opportunity of submitting their explanation and how the petitioner was not afforded a personal hearing thereby depriving the principles of natural justice - In normal circumstances, this Court desists from entertaining the writ petition on the availability of efficacious and alternative remedy. However, under certain special circumstances, violation of principles of natural justice being one, this Court would exercise its preliminary jurisdiction. Time limitation - applicability of decision in the case of Glaxo Smith Kline 2020 (5) TMI 149 - SUPREME COURT where it was held that The remedy of appeal is creature of statute. If the appeal is presented by the assessee beyond the extended statutory limitation period of 60 days in terms of Section 31 of the 2005 Act and is, therefore, not entertained, it is incomprehensible as to how it would become a case of violation of fundamental right, much less statutory or legal right as such - HELD THAT - Unlike in the said case, the petitioner filed the writ petition well within the period of limitation available for filing appeal. In such a case, having regard to the totality of the facts, this Court can entertain the writ petition. Violation of principles of natural justice - contention of the petitioner is that the said Deepak Agarwal, who was the erstwhile employee of the petitioner company, resigned from the company on 15.10.2018 itself and therefore, they did not receive any notice dated 12.06.2016 - HELD THAT - In this context, the petitioner filed the proceedings dated 30.10.2018 issued by the Senior Manager, Human Resources, stating that Mr. Deepak Agarwal worked as Deputy Manager in Finance, Legal and Secretarial (Taxation) from 22.01.2016 to 15.10.2018. Therefore, as rightly argued by the petitioner, the notice dated 12.06.2016 cannot be said to be received by the petitioner - Also, the petitioner filed a copy of Form No.DIR-XII which shows that the Director Rajath Kumar Gupta, S/o Ved Prakash, resigned from the Directorship on 28.03.2018. Hence, notice sent to him cannot be attributed to the petitioner. Notice date 20.03.2020 was also said to be sent by e-mail but, the concerned employee left service. Above all, the GST registration certificate of the petitioner shows that the address of the petitioner was changed with effect from 01.02.2019. So, for this reason also, the petitioner cannot be said to be received the notices which if they were sent to old address. Thus, the petitioner did not receive any of the notices said to be sent by the 2nd respondent and therefore, they had no occasion to submit their explanation/objection. So also, they had no occasion to submit their case personally. Consequently, the principles of natural justice are violated in the instant case. Therefore, the impugned assessment order is liable to be set aside - petition allowed.

Summary

Issues Involved:
1. Maintainability of the writ petition due to the availability of an alternative remedy.
2. Alleged violation of principles of natural justice.
3. Proper service of notices to the petitioner.
4. Timeliness of the assessment order.

Detailed Analysis:

1. Maintainability of the Writ Petition:
The respondents argued that the writ petition is not maintainable due to the availability of an efficacious and alternative remedy of appeal under Section 31 of the AP VAT Act 2005. However, the court held that the writ petition is maintainable given the specific circumstances, particularly the alleged violation of principles of natural justice. The court cited the Apex Court's decision in *Whirlpool Corporation Vs. Registrar of Trade Mark*, emphasizing that the High Court can entertain a writ petition if there has been a violation of principles of natural justice.

2. Alleged Violation of Principles of Natural Justice:
The petitioner contended that the assessment order was passed without serving pre-assessment show cause notices and personal hearing notices to the correct address, thus violating the principles of natural justice. The court found merit in this contention, noting that the petitioner did not receive the relevant notices. The court emphasized that the principles of natural justice were grossly violated as the petitioner was deprived of the opportunity to submit its case and was not afforded a personal hearing.

3. Proper Service of Notices:
The respondents claimed that they had exercised all possible modes of service, including registered post and email. However, the court found that the notices were not properly served. The notices were either sent to the old address, to an employee who had resigned, or to a group company of the petitioner. The court noted that the petitioner had informed the change of address to the GST Department, and the amended registration certificate was issued. Therefore, the court concluded that the petitioner did not receive any of the notices, and the service of notices was inadequate.

4. Timeliness of the Assessment Order:
The petitioner argued that the demand under the assessment order was barred by limitation. The court did not explicitly address this issue, as the primary focus was on the violation of principles of natural justice.

Conclusion:
The court allowed the writ petition, setting aside the impugned assessment order dated 19.08.2020. The court directed the 2nd respondent to permit the petitioner to submit its records and documents, consider them, and after affording a personal hearing, pass a fresh assessment order in accordance with the governing law and rules. There was no order as to costs, and any pending interlocutory applications were closed.