IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA No. 277 of 2007()
1. M/S. HILL WOOD TRADERS,
... Petitioner
Vs
1. THE INTELLIGENCE OFFICER (IB),
... Respondent
2. THE COMMISSIONER OF COMMERCIAL TAXES,
For Petitioner :SRI.M.K.DAMODARAN (SR.)
For Respondent : No Appearance
The Hon'ble the Acting Chief Justice MR.K.S.RADHAKRISHNAN
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :08/03/2007
O R D E R
WA 277/07 Etc. 1
K.S. RADHAKRISHNAN, Ag. C.J. & M.N. KRISHNAN, J.
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Writ Appeal Nos. 277, 288, 293 and 303 of 2007 &
W.P.C. Nos 5911, 5912 and 5916 of 2007
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Dated : 8tth March, 2007
JUDGMENT
Radhakrishnan, Ag.C.J.
Facts of these cases have been elaborately dealt with by the learned
single judge while disposing of the writ petitions. We therefore find it
unnecessary to reiterate all those facts for disposal of these cases.
2. The main contention urged by the Senior Counsel Sri M.K.
Damodaran is that no effective opportunity was given to the appellants
before initiating proceedings under section 45 A of the Kerala General
Sales Tax Act, 1963. Referring to sub-section (2) of Section 45-A of the
Act, counsel submitted that no order under sub-section (1) shall be passed
unless the person on whom the penalty is proposed to be imposed is given
an opportunity of being heard in the matter. Contention raised by the
counsel has to be examined in the light of the facts of the cases.
3. We may therefore briefly refer to the facts for the disposal of all
these appeals. Writ petitioner in W.P.C. No 33646 of 2005 is filed by
WA 277/07 Etc. 2
Moideen, Proprietor, Al-Ameen Wood Industries, Kanhangad raising the
allegation that all the purchases were effected by the parties in the
proceedings using his name which resulted in this court ordering a vigilance
enquiry. Vigilance enquiry was accordingly conducted and report was
placed before this court. This court after perusing the report passed an
order directing the Commissioner to take appropriate action against those
who have made bogus sales and accounted the same at concessional rates in
the name of Moideen, proprietor of Al-Ameen Wood Industries,.
Kanhangad. Commissioner issued notice to all the parties. Parties were
represented by advocates and various documents were produced. Witnesses
were cross-examined and ultimately it was revealed that the bogus sales
were effected in the name of Moideen which resulted in imposing penalty
under section 45-A on the appellants herein.
4. Section 45A notices were issued to all the parties. Date of hearing
was fixed specifically stating that the objection should be filed within seven
days. Section 45-A notice was issued to Hill Wood Imports and Exports
Private Limited on 26.9.2006 fixing the date of hearing in respect of the
assessment year 2001-2002 as 28.10.2006. Same was the date fixed for
hearing for the assessment year 2002-2003 as well; so also for the year
2003-2004. It was specifically stated in the notices that objection, if any,
WA 277/07 Etc. 3
should be filed within seven days and date of hearing was notified as
28.10.2006. Section 45-A notice was also issued to Hillwood Traders on
29.09.2006 fixing the date of hearing as 28.10.2006 relating to the
assessment years 2001-2002, 2002-2003 and 2003-2004. Section 45A
notice dated 25.09.2006 was also issued to Hillwood Industries fixing the
date of hearing as 28.10.2006 which relate to the assessment year 2001-
2002. Notices dated 26.9.2006 were also issued to Hillwood Industries
fixing the date of hearing as 28.10.2006 in respect of the assessment years
2002-2003 and 2003-2004. Notices dated 27.09.2006 were also issued to
Mangali Timbers fixing the date of hearing as 28.10.2006. Above
mentioned facts would clearly indicate that at least one month’s time was
granted to the parties to file their objection and date of hearing was fixed
after one month from the date of notice. That would be sufficient for the
purpose of filing objection and to get ready for the hearing. Nobody was
prepared to appear on the dates notified. Later, on 27.10.2006 yet another
notice was issued to the parties stating that no adjournment would be given
and the date of hearing was fixed as 8.11.2006. Nobody got ready for
hearing on the said date. Again parties were seeking time. Considering the
facts and circumstances of the case, we are not prepared to say that the
Department had not given any effective opportunity to the parties. When
WA 277/07 Etc. 4
date of hearing was fixed and notice was sent to that effect, it is the
responsibility of the parties to get ready for hearing on the date notified.
5. We are also not prepared to say that there is any violation of the
principles of natural justice taking note of the entire facts and
circumstances of these cases. Decisions cited by the appellants would not
apply to the facts of this case. In any view of the matter, appellants have
got alternate remedy of appeal before the appellate authority. Therefore
appellate authority would examine the contentions raised by the appellants
herein while disposing of the appeals. We make it clear, if the appellants
have not filed appeals so far, they are given two weeks’ time to file appeals
in the event of which appellate authority would take note of the contentions
raised by the appellants and pass appropriate orders in accordance with law.
We further make it clear we are not expressing any opinion on the merits of
the case since appellants have to avail of the alternate remedy of appeal.
The appeals and the writ petitions are disposed of as above.
SD/-
K.S. RADHAKRISHNAN
Ag. Chief Justice
SD/-
M.N. KRISHNAN
08/03/2007 Judge
en/ [TRUE COPY]
WA 277/07 Etc. 5