IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 34896 of 2009(F)
1. REGI PAUL, LEGAL HEIR OF LATE P.K.PAILY,
... Petitioner
Vs
1. THE FAST TEACK TEAM NO.VIII,
... Respondent
2. THE SALES TAX APPELLATE TRIBUNAL,
3. THE COMMERCIAL TAX OFFICER,
4. THE PRINCIPAL SECRETARY TO GOVERNMENT,
For Petitioner :SRI.M.K.SUBHAKARAN
For Respondent : No Appearance
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :09/12/2009
O R D E R
C.K. ABDUL REHIM, J.
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W.P.(C)No. 34896 of 2009
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Dated this the 9th day of December, 2009
J U D G M E N T
1. Challenge in this writ petition is against Exts.P1 &
P2 orders of assessments completed under Section 17 D of
the Kerala General Sales Tax Act, 1963 (KGST Act).
Eventhough the petitioner had filed appeal before the
Tribunal, the same is not registered for want of payment of
the tax amount in dispute, which is mandatory under
Section 17 D (5) of the Act. Petitioner pointed out various
procedural irregularities and violations of the mandatory
provisions of Section 17 D with respect to finalisation of the
assessment.
2. Validity of Section 17 D was under challenge in a
batch of writ petitions before a Division Bench of this court.
While upholding validity of Section 17 D the Division Bench
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observed as follows;
“Even though we have upheld the validity of the
statutory provisions, we are unable to uphold the
impugned assessments for the simple reason that the
none of the assessments challenged in the Writ
appeals or in the Writ petitions was completed in
accordance with the procedure contemplated under
section 17D. It is clear from clause (g) of Section 17
D(2) that the team constituted under section 17 (D)
should fix the venue and date of hearing and hold
sitting to hear the parties after issuing notice in
advance to dealers concerned. Further, information
in this regard should be published in local media as
well. It is provided in Sub section (3)o f Section 17 D
that all assessments under Fast Track Method should
be unanimous decision signed by all team members.
It is very clear from the scheme that all the team
members should sit together, consider the returns
filed, accounts and records produced, hear the
parties or their representatives and suggest proposal
for assessment. If an assessment by consent can be
passed, then assessment order should be passed in
accordance with the terms agreed in first sitting
itself. The assessments that could be completed in
the first sitting are cases where team of Assessing
Officers accept the returns filed or with such
additions which the party agrees. On the other hand,
if assessment is proposed in deviation with turnover
returned or against additions over and above if any
agreed by the parties, then it is for the very same
team to issue pre-assessment notice containing
proposal for assessment and the same should be
signed by all of them. The party should be given
sufficient time to file objections and the next date of
public hearing by the committee should be informed
to the party. Assessment has to be complete after
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hearing the party by team on the objection filed to
the pre-assessment notice and in order to have a
binding assessment, the assessment should be one
completed with unanimous agreement of all the team
members, In fact, ex-parte assessment is
contemplated only when parties who are served
notice informing the venue and date of hearing fail to
appear. Here again, we are of the view that there is
no harm in giving one more opportunity, if the team
of officers feel that the party is not absenting
deliberately. Since in all these cases assessments are
completed by issuing pre-assessment notice by
individual officers, we feel that the procedure
contemplated and stated by us above is not strictly
followed and so much so, orders passed cannot be
sustained under the provision of Section 17 D. We,
therefore allow the writ appeals and writ petitions in
part by vacating the impugned assessment orders,
but with direction to the assessment team to
complete the assessment afresh under section 17 D
within a period of three months from the date of
receipt of copy of this judgment after issuing notice
to all parties and after hearing their objections. We
make it clear that each and every objection raised by
the parties in the reply to pre-assessment notice
should be considered and unanimous decision should
be taken by the team members. We do not want to
examine the other issues raised in some of the cases
like challenge against other statutory provisions,
challenge against penalty orders etc. These issues
are left open. We leave freedom to the parties to
challenge the penalty orders before statutory
authorities because those are not issued under
section 17 D. So far as challenge against other
statutory provision are concerned, we leave it open to
the parties to raise any such challenge, if required,
after completion of assessments afresh as stated
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above”.
3. In view of the directions contained in the Division
Bench Judgment cited supra (Hindustan Petroleum Corporation
Ltd. V. Assistant Commissioner and others: Writ Appeal
No.1714/2009 and connected cases Jt:dt:8/10/ 2009), I am of
the opinion that the impugned assessments in the writ
petition are not sustainable and hence matters need fresh
disposal by the authority concerned.
4. Therefore the writ petition is allowed quashing
the impugned assessments finalised under section 17 D and
also the consequential demands raised if any, for realisation
of amounts covered under such assessments. The
respondent concerned, (The Fast Track Team) is directed to
take fresh steps necessary for completing the assessments
taking note of the directions contained in the Division
Bench judgment. The fresh assessment as directed above
shall be completed as early as possible, at any rate within a
period of three months from the date of receipt of the copy
of this judgment, after affording adequate opportunities to
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the petitioner as directed in the Division Bench Judgment
cited above.
C.K. ABDUL REHIM
JUDGE
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