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State Of Kerala vs K.T. Shaduli Yusuff Etc on 15 March, 1977
Article 226 in The Constitution Of India 1949

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Kerala High Court
M. S. Jewellery vs Assistant Commissioner ... on 8 January, 1993
Equivalent citations: (1994) 122 CTR Ker 155, 1994 208 ITR 531 Ker

JUDGMENT K. S. PARIPOORNAN J. - The petitioner in Original Petition No. 16388 of 1992 is the appellant in this writ appeal. The respondents are the Assistant Commissioner (Assessment), Agricultural Income-tax and Sales Tax, Thiruvananthapuram, and the State of Kerala. The challenge in the original petition was against exhibit P-6, an order of assessment passed by the first respondent for the year 1990-91, dated July 16, 1992.

Exhibit P-6 was challenged as illegal, unfair and violative of the principles of natural justice, amongst others. The learned single judge found that in exhibit P-6, the objection filed by the appellant has been elaborately considered and the appellant has got a remedy by way of appeal against exhibit P-6. The learned single judge declined jurisdiction. The petitioner in the original petition has come up in writ appeal.

We heard counsel for the appellant as also counsel for the respondents senior Government Pleader, Mr. V. C. James.

When the matter came up before us on January 6, 1993, we requested the Senior Government Pleader, Mr. James, who was present in the court, to take notice and make available to us the files. Accordingly, the learned Government Pleader placed before us the relevant files. We perused them.

It is unnecessary to go into the details of this case, since one of the pleas urged in the writ appeal is fundamental. It is stated that the assessee/(firm) was not afforded a proper opportunity of being heard before the assessment was completed. Admittedly, the first respondent served exhibit P-3 pre-assessment notice on the appellant. The appellant filed its objection thereto, evidenced by exhibit P-5. Exhibit P-5 is dated July 14, 1992. It is common ground that exhibit P-5 was filed before the first respondent only on July 16, 1992. It is stated so in exhibit P-6 assessment order as well. The matters detailed in the pre-assessment notice are sufficiently lengthy and complicated. The reply thereto is also equally lengthy (pages 25 to 43 of the paper book - 18 typed pages of which 8 typed pages contained statements in figures). The issues raised required detailed analysis and consideration and sifting of material. Without affording a meaningful and effective opportunity to the appellant to have her say in support of the objections, the first respondent -assessing authority - is seen to have passed the assessment order immediately on receipt of the objections from the appellant, evidenced by exhibit P-6 dated July 16, 1992. The objection to the pre-assessment notice itself was received by the Assessing Officer only on July 16, 1992. On the very same day, the order of assessment was also passed. Exhibit P-6 does not show that the assessee was heard in person before the assessment order was passed.

The first respondent, who was present in the court, conceded that the assessee was not heard before exhibit P-6 order of assessment was passed. But, it was stated that even in exhibit P-5 assessment notice, it was stated that the assessee will be heard when the objections were filed. We doubt very much whether such "lip service" regarding the requirement of hearing will be sufficient compliance in law. Even so, can it be so in all cases, without regard to the dimensions of the questions involved ? In this case, the objections themselves (exhibit P-5) ran into 18 pages, of which 8 full typed pages contain statements in figures. No advertence is made in exhibit P-6 to such details. It required analysis and sifting of material. A mere ritual or empty formality will not be an opportunity as contemplated by law. It will be a "pretence" or "make believe". This is not a case of a mere routine or simple matter. Here is a case wherein lot of details and complicated aspects are projected. Can it be sidetracked in a casual manner ? If so done, is it in conformity with fairness and natural justice ? In our opinion, it cannot be Krishna Iyer J., as he then was, stated thus in A. Ibrahim Kunjus case, AIR 1970 Ker 65 at page 67 :

". . . . opportunity should be real and not ritualistic, effective and not illusory and must be followed by a fair consideration of the explanation offered and the materials available, culminating in an order which discloses reasons for the decision sufficient to show that the mind of the authority has been applied relevantly and rationally and without reliance on facts not furnished to the affected party.

Natural justice, I must warn, cannot be perverted into anything unnatural or unjust and cannot therefore be treated as a set of dogmatic prescriptions applicable without reference to the circumstances of the case. The question merely is, in all conscience have you been fair in dealing with that man ? If you have been arbitrary, absent-minded, unreasonable or unspeaking, you cannot deny that there has been no administrative fair play."

See also S. N. Govinda Prabhu and Bros case [1985] 59 STC 33 (Ker) and Indian Transformers Ltd.s case [1983] KLT 861 at page 866. In this case, intricate or complicated questions are involved in the matter as is seen from exhibit P-5. It required a proper evaluation and appraisal and oral hearing before passing the assessment order (exhibit P-6). It was not done. The Supreme Court in State of Kerala v. K. T. Shaduli Yusuff [1977] 39 STC 478 at page 483, adverting to the relevant provisions of the Kerala General Sales Tax Act, states thus :

". . . . where a return has been submitted by the assessee, the Sales Tax Officer would first have to satisfy himself that the return is incorrect or incomplete before he can proceed to make the best judgment assessment. The decision-making process in such a case would really be in two stages, though the inquiry may be continuous and uninterrupted : the first stage would be the reaching of satisfaction by the Sales Tax Officer that the return is incorrect or incomplete and the second stage would be the making of the best judgment assessment. The first part of the proviso which requires that before taking action under sub-section (3) of section 17, the assessee should be given a reasonable opportunity of being heard would obviously apply not only at the second stage, but also at the first stage of the inquiry, because the best judgment assessment, which is the action under section 17, sub-section (3), follows upon the inquiry and the reasonable opportunity of being heard must extend to the whole of the inquiry, including both stages. The requirement of the first part of the proviso that the assessee should be given a reasonable opportunity of being heard before making best judgment assessment merely embodies the audit alteram partem rule and what is the content of this opportunity would depend, as pointed out above, to a great extent on the facts and circumstances of each case."

There is thus a failure of natural justice. The mandatory requirements of the statute has not been complied with. There is no case or material before us to warrant the view that the assessee did not want to be heard orally. An order passed in violation of the principles of natural justice is void. The learned Government Pleader was not able to satisfy us that exhibit P-6 was passed in conformity with law. We, therefore, quash exhibit P-6.

It is true that the assessee has an alternative remedy under the statute, to file an appeal against exhibit P-6. Normally, availability of such an alternative remedy will dissuade this court from exercising the jurisdiction under article 226 of the Constitution of India. Indeed, the learned single judge has declined to exercise the jurisdiction on that ground. In appeal, normally, the exercise of such a discretion will not be interfered with. But, in this case, keeping in view exhibits P-3 and P-5, we are satisfied that exhibit P-6 was passed in undue haste, and in violation of the principles of natural justice. On facts, we are of the view that no due care and caution was bestowed in exercising the statutory power in passing exhibit P-6. It is "mala fide" in law. This vital aspect has been ignored by the learned single judge. The order assailed in the original petition is patently unreasonable and infirm. It is also unfair. The learned single judge ignored the vitiating factors aforesaid. We are constrained to hold that the learned single judge was wrong and unreasonable in dismissing the original petition by relegating the party to pursue the statutory remedy in the facts and circumstances of this case. He has not exercised the discretion vested in him in accordance with law and was wrong in declining jurisdiction. We set aside the judgment of the learned single judge.

Exhibit P-6 is quashed. The writ appeal is allowed. We make it clear that the assessment can be redone after affording proper opportunity to the assessee.