2022 (3) TMI 745 - HC - VAT and Sales Tax

Service of original demand notice from the petitioner - failure on the part of the petitioner to produce the original of the demand notice along with the appeal memorandum - HELD THAT - The original assessment order issued to the petitioner had admittedly returned to the sender with the endorsement not known . This indicates that petitioner was never served with either the original order or the original demand notice initially. However a certified copy of the assessment order was issued to the petitioner on 27.09.2018 based upon which the petitioner preferred the appeal. Though the learned Government Pleader submitted that the original demand notice was also attached along with the assessment order there is nothing on record to show that petitioner was served with the original or certified copy of the demand notice. In the absence of proof of service of demand notice coupled with the fact that the petitioner had filed the appeal within time with the certified copy of the assessment order it is held that neither the original of the demand notice nor the certified copy of the demand notice was served on the petitioner. In the absence of any proof of service of demand notice on the petitioner he is entitled to be issued with the certified copy of the demand notice as applied for in Ext.P5. Failure on the part of the petitioner to produce the original demand notice along with the appeal memorandum cannot be treated as a defect which can be cured by the petitioner. Rejection of the appeal for failure of the petitioner to produce the original demand notice is therefore incorrect and against law - the 1 st respondent is directed to issue the certified copy of the demand notice attached with the assessment order No.FAR 1687/2017 dated 28.03.2018 within a period of ten days from the date of receipt of a copy of this judgment - petition allowed.

Summary

Issues Involved:
Challenge to rejection of appeal for failure to produce original demand notice along with appeal memorandum under Kerala Value Added Tax Act, 2003.

Detailed Analysis:

Issue 1: Rejection of Appeal for Failure to Produce Original Demand Notice
The petitioner challenged the order of the 2nd respondent, Ext.P6, which rejected the appeal due to the petitioner's failure to cure defects, specifically the non-production of the original demand notice along with the appeal memorandum. The petitioner contended that the original assessment order and demand notice were not served on him as he was out of the country during that period. The Government Pleader argued that both the original assessment order and demand notice were issued to the petitioner but returned with the endorsement "not known."

Issue 2: Service of Documents and Appeal Filing
The High Court found that the original assessment order had indeed returned to the sender with the endorsement "not known," indicating that the petitioner was not served with the original order or demand notice initially. Although a certified copy of the assessment order was later issued to the petitioner, there was no evidence to show that the petitioner was served with the original or certified copy of the demand notice. The petitioner had applied for a certified copy of the demand notice, but no response had been provided by the assessing officer.

Issue 3: Legal Conclusion and Judgment
Considering the circumstances and lack of proof of service of the demand notice, the Court held that the rejection of the appeal for failing to produce the original demand notice was incorrect and against the law. The Court set aside Ext.P6 and directed the 1st respondent to provide the certified copy of the demand notice attached with the assessment order within ten days. Once received, the petitioner was instructed to produce the certified copy before the 2nd respondent within two weeks for a reconsideration of the appeal on its merits in a time-bound manner.

In conclusion, the High Court allowed the writ petition, emphasizing the importance of proper service of documents and the petitioner's right to be issued with a certified copy of the demand notice for a fair consideration of the appeal under the Kerala Value Added Tax Act, 2003.