High Court Kerala High Court

Sri.P.Sethumadhavan vs The Commercial Tax Officer on 4 December, 2009

Kerala High Court
Sri.P.Sethumadhavan vs The Commercial Tax Officer on 4 December, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 34918 of 2009(H)


1. SRI.P.SETHUMADHAVAN,
                      ...  Petitioner

                        Vs



1. THE COMMERCIAL TAX OFFICER,
                       ...       Respondent

2. THE STATE OF KERALA,

                For Petitioner  :SRI.E.P.GOVINDAN

                For Respondent  : No Appearance

The Hon'ble MR. Justice C.K.ABDUL REHIM

 Dated :04/12/2009

 O R D E R
                    C.K.ABDUL REHIM, J.

                    ------------------------------
                  W.P.(C).No.34918 OF 2009
                    ------------------------------

           Dated this the 4th day of December, 2009


                        J U D G M E N T

———————-

1. Ext.P1 order of assessment issued under the Central

Sales Tax Act is challenged in this writ petition, without

resorting to statutory remedy of appeal available to the

petitioner. The challenge against Ext.P1 is mainly on the ground

that adequate opportunity was not given to the petitioner before

finalising the assessment. The assessment pertains to the year

2005-06. Petitioner claimed exemption with respect to the entire

turnover on the ground that the sale made by him are sale in

transit covered under Section 6(2) of the CST Act. But the

petitioner failed to produce C-forms and E-1 declarations in

order to substantiate the claim for exemption. It is stated in

Ext.P1 order that the petitioner had failed to produce the

required forms and declarations, inspite of notice. According to

the petitioner such notices were issued as early as in May 2009

and the petitioner had in fact sought adjournment for production

of the required forms, as evidenced from Ext.P3 letter. It is the

case of the petitioner that further notice was not issued and the

assessment was finalised behind his back. According to the

W.P.(C).34918/09-H 2

petitioner, though belated, he has received all the required C-

forms and E-1 declarations which are produced along with this

writ petition, as Ext.P4 and P5 series. Therefore the assessment

is totally unsustainable, is the contention.

2. The preliminary question to be considered is whether

there is a patent lack of jurisdiction or a patent erroneous

exercise of jurisdiction by the 1st respondent in finalising the

assessment which warrants interference of this court, even when

statutory remedy is not resorted to. Since the question

regarding violation of natural justice is in dispute, I am of the

opinion that it is a fit case to be taken up in appeal before the

statutory appellate authority. Further more, I notice that the

appellate authority is conferred with all the powers of the

assessing authority and if the petitioner could produce the forms

and declarations before that authority, definitely that can be

taken note of by the appellate authority. Under such

circumstances, I am of the opinion that the petitioner can be

relegated to the appellate authority to redress his grievances.

3. Accordingly the writ petition is disposed of directing

the petitioner to file statutory appeal against Ext.P1 order of

assessment, along with petition seeking interim relief, before the

appellate authority having jurisdiction, within a period of one

W.P.(C).34918/09-H 3

month from today. The petitioner can also produce all necessary

documents in support of his claim. If such appeal is received by

the appellate authority concerned within the time stipulated as

above, the appellate authority shall either dispose of the appeal

itself or the stay application, after affording an opportunity of

hearing to the petitioner, as early as possible, at any rate within

a period of one month from the date of filing of such appeal.

Needless to say that the appellate authority shall take note of all

the forms and declarations which will be produced by the

petitioner.

4. In order to facilitate the petitioner to approach the

appellate authority, coercive steps for realisation of the amounts

covered under Ext.P1 shall be kept in abeyance for a period of

six weeks from today.

C.K.ABDUL REHIM, JUDGE.

okb