Karukunnathu Exports Vs Commercial Tax Officer (Kerala High Court)
SEO Title: HC Sets Aside Dismissal of Writ Challenging Allegedly Void KVAT Assessment
The Kerala High Court allowed the appeal against the learned Single Judge’s order dismissing the writ petition on the ground that the appellant had an alternative statutory remedy against the assessment order. The appellant contended that the assessment order dated 22.07.2024 was a nullity because it was issued more than eight years after the pre-assessment notice under Section 25(1) of the KVAT Act dated 01.06.2016. The Revenue argued that the appellant had not objected to completion of the assessment on the ground of limitation after receiving a Section 95 KVAT Act notice on 25.06.2024. The High Court held that the primary issue was whether the assessment order was a nullity due to delay and that this question required examination before relegating the appellant to an alternative remedy. It also observed that a notice under Section 95 merely informs the assessee that a new incumbent officer will complete the assessment. Accordingly, the Court set aside the impugned judgment and requested the learned Single Judge to reconsider W.P.(C) No. 30917 of 2024 on merits after affording both sides an opportunity of hearing.
FULL TEXT OF THE JUDGMENT/ORDER OF KERALA HIGH COURT
The learned Single Judge has dismissed the writ petition filed by the appellant, for the reason that there is an alternative statutory remedy he can avail against Ext.P6 assessment order.
2. However, the specific case of the appellant is that the assessment order dated 22.07.2024 is in nullity, since it has been issued more than eight years after Ext.P1 pre-assessment notice, under Section 25(1) of the KVAT Act, had been issued, on 01.06.2016.
3. The contra-argument of Sri.Shaij Raj T.K – learned Government Pleader, is that, even though the appellant was issued with a notice under Section 95 of the KVAT Act, on 25.06.2024 – copy of which is Ext.P3 – he did not raise any objection to the assessment being completed, citing the ground of limitation.
4. As indited above, the learned Single Judge refused to exercise jurisdiction solely because there is an alternative remedy available against the assessment.
5. But, in our view, the germane issue was whether the assessment order is a nullity, as argued by the appellant, on the ground of delay – it being issued more than eight years after the pre-assessment notice had been given in the year 2016. Without this question being answered, it would be a travesty to ask the appellant to invoke alternative remedy against the assessment order; because it is well recognised, without requirement for restatement, that writ jurisdiction is not excluded always, when alternative remedies are available; and that the question whether the impugned order is null and void, or otherwise infirm in law, requires to be assessed and decided.
6. This is more so, when a notice under Section 95 of the KVAT Act is only one intimating the assessee that a new incumbent officer is to complete the assessment.
In such circumstances, we allow this appeal and set aside the impugned judgment; with a consequential request to the learned Single Judge to reconsider W.P.(C) No.30917 of 2024 on its merits, after affording necessary opportunities to both sides.
