The petitioner is challenging correctness and sustainability of Exts. P6/P6(a) orders passed by the first respondent effecting assessment under Section 25 (1) of the KVAT Act also imposing penalty under Section 67 of the Act.
2. The specific ground raised by the petitioner is that no opportunity of hearing was ever given to the petitioner before passing the said orders. When the matter came up for consideration on 07.10.2014, the following interim order was passed :
“Learned Government Pleader on instructions would submit that the petitioner was given an opportunity for hearing as he was heard on 24.07.2014. The respondent authority may file necessary affidavit in that regard.
Post after two weeks”.
3. Pursuant to the order dated 07.10.2014, an affidavit has been filed by the first respondent, paragraph 6 of which reads as follows :
“6. It is respectfully submitted that the assessee was served with pre-assessment notice on 07.07.2014 and opportunity for personal hearing was granted to him om 19.07.2014. On 24.07.2014, the assessee submitted reply to the pre-assessment notice. He was heard in the matter on 24.07.2014 itself. Nothing more was submitted by the assessee on 24.07.2014 than what has been raised in the written objections. In the circumstances assessment was completed u/s 25 (1) on 25.07.2014 itself. No further opportunity for personal hearing has been given to the assessee after 24.07.2014 eventhough there was a prayer in the objection for it. It was not granted because the assessee was heard in the matter on 24.07.2014. But in the assessment orders the above matter was omitted to be recorded by an inadvertent mistake. The body part of the proceedings were taken from the pre- assessment notice by 'cutting & pasting method'. By resorting so, the matter of opportunity for personal hearing was omitted to be recorded. The objections raised by the assessee has been considered in detail after hearing the assessee and all the procedure of natural justice has been complied in this case.
4. Admittedly, the reply was submitted only on 24.07.2014 though the time granted to the assessee was till 19.07.2014. However, it is stated that nothing was submitted by the assessee on 24.07.2014 other than what was raised in the written objection and hence no opportunity of hearing was given to the assessee after 24.07.2014, though there was a specific prayer in the petition in this regard. Admittedly, the assessment stands finalized on that date. In the next sentence, it is stated that an opportunity of hearing was not given, as the assessee was heard in the matter on 24.07.2014. On going through the proceedings also, there is discrepancy in Ext. P6 order as well, in so far as the first respondent has stated in 'paragraph viii' that there is merit in the contentions of the assessee, but in the next breath, it is stated that all the contentions raised by the assessee have been rejected, which do not reconcile with each other. The learned Government Pleader submits that it is only a mistake. Coupled with the mistakes and inadequate opportunity of hearing, this Court finds that the matter is liable to be reconsidered.
5. In the above circumstances, Exts. P6/P6(a) impugned orders are set aside, however without prejudice to the rights and liberties of the first respondent to finalize the proceedings, in accordance with law, after giving an opportunity of hearing, which shall be finalized, at the earliest, at any rate, within two months from the date of receipt of a copy of this judgment.
Petitioner shall produce a copy of this judgment along with copy of the writ petition before the first respondent for further steps.
kmd Sd/-
P. R. RAMACHANDRA MENON, (JUDGE)