2016 (8) TMI 174 - HC - VAT and Sales Tax

Validity of order - violation of principles of natural justice. - Petitioner was given an opportunity for a personal hearing on any of the working days at the office of the Officer. According to the petitioner, unless the posting date is given, there could not be a proper hearing in the matter. - Held that - it is a settled principles of law that when an alternate remedy is available, this Court shall not normally interfere unless in exceptional circumstances, when there is violation of principle of natural justice or jurisdictional error or patently illegality being committed. In the present case, the allegation is that there is violation of principles of natural justice. The assessing officer had proceeded on the basis that the fact of mistake was admitted, which is clear from the reply itself. In the said circumstances, I do not think that any prejudice had been caused to the petitioner for not giving further opportunity for hearing - Writ petition dismissed - Decided against the petitioner.

Summary

Issues:
Violation of principles of natural justice in passing Ext.P5 order under Section 25(1) of the Kerala Value Added Tax Act, 2003.

Analysis:
The petitioner challenged the Ext.P5 order, alleging a violation of natural justice principles. The petitioner contended that the order was passed without proper consideration of the facts stated in the reply (Ext.P3) and without providing an opportunity for a subsequent hearing. However, the impugned order, Ext.P5, indicated that the assessee had appeared in person and filed a reply, where the assessee seemingly admitted the offense mentioned in the pre-assessment notice. Consequently, the assessment under Section 25(1) of the Kerala Value Added Tax Act, 2003, was completed for the assessee.

The petitioner's counsel argued that the facts stated in the reply were not considered, emphasizing the importance of a reasoned order as mandated by the proviso to Section 25(1). Reference was made to various judgments to support the contention that a proper hearing is not merely a formality. On the other hand, the Government Pleader asserted that the petitioner was given sufficient opportunities for filing a reply and a hearing. The reply was submitted on 19.5.2016, where the petitioner admitted a difference in purchase and requested a revision, citing a clerical error in the returns.

The Court acknowledged the statutory right to a hearing but highlighted that its necessity depends on the circumstances of each case. In this instance, the petitioner virtually admitted the mistake in the purchase difference, as indicated by the assessing officer. The Court noted that the assessing officer proceeded based on this admission and concluded that the allegation in the pre-assessment notice was admitted. The Court emphasized that the question of revising the return was a separate proceeding that needed to be considered independently. As no revision was filed at the relevant time, the assessing officer was justified in proceeding with and completing the assessment.

Moreover, the Court cited the principle that when an alternate remedy is available, interference by the Court is generally avoided unless there are exceptional circumstances involving a violation of natural justice, jurisdictional error, or blatant illegality. In this case, the Court found that the assessing officer's actions were based on the admitted mistake, causing no prejudice to the petitioner. Therefore, the Court declined to interfere with the Ext.P5 order at that stage, allowing the petitioner to appeal before the competent authority while dismissing the writ petition.