HC held Ex-parte Assessment valid despite non-receipt of notice by Company as Director received the Notice sent to him

M/s. Elcicon Associates [I] Pvt. Ltd. Vs. Commercial Tax Officer (Kerala High Court)

The petitioner has approached this Court challenging Ext.P1 assessment order passed under the Kerala Value Added Tax Act. In the writ petition, it is the case of the petitioner that the petitioner was not issued a pre- assessment notice prior to passing of Ext.P1 order, and further, the petitioner was not heard in the matter. It is therefore contended that Ext.P1 order is vitiated by a non-compliance with the rules of natural justice.

2. I have heard the learned counsel appearing on behalf of the petitioner and also the learned Government Pleader appearing on behalf of the respondents.

3. On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find from a perusal of Ext.P1 order that the order makes mention of the service of a notice to the company as also to the Director, who represents the company in this writ petition. The notice sent to the company was returned with the postal inscription ‘addressee left’, whereas the notice sent to the Director was duly received by him on 14.03.2017. It is stated that not withstanding the receipt of the pre- assessment notice, the Director did not appear for a hearing before the adjudicating authority, and it is under those circumstances that Ext.P1 order of assessment came to be passed. Taking note of the said factual findings in Ext.P1 order, I am of the view that, Ext.P1 order cannot be said to be vitiated on account of any jurisdictional error, or non-compliance with the rules of natural justice, so as to interfere with the same in these proceedings under Article 226 of the Constitution of India. The writ petition, in its challenge against Ext.P1 order, therefore fails, and is accordingly dismissed.

Taking note of the submission of the learned counsel for the petitioner that the petitioner would require some time to move the Appellate authority, I direct that recovery steps, pursuant to Ext.P1 assessment order, shall be kept in abeyance for a period of three weeks, so as to enable the petitioner to move the Appellate authority, in the meanwhile.

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