IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 35735 of 2009(J)
1. ELDOSE KURIAKOSE, AGED 39 YEARS,
... Petitioner
Vs
1. THE COMMERCIAL TAX OFFICER,
... Respondent
For Petitioner :SRI.PULIKKOOL ABUBACKER
For Respondent : No Appearance
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :11/12/2009
O R D E R
C.K.ABDUL REHIM, J.
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W.P.(C).No.35735 OF 2009
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Dated this the 11th day of December, 2009
J U D G M E N T
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1. Ext.P5 order of assessment is challenged in this writ
petition without resorting to statutory remedy of appeal, on the
premise that there is total violation of natural justice, to the
extent the petitioner was not afforded with sufficient opportunity
to object the pre-assessment notice.
2. Ext.P3 is the notice issued under Section 25 of the
Kerala Value Added Tax Act, 2003 (KVAT Act) intimating
proposal for assessment and calling for objections. Ext.P3 is
dated 2.11.2009. In the impugned order it is admitted that the
notice was served on the petitioner only on 12.11.2009. It is
noticed that in Ext.P3 the petitioner was required to appear
along with books of account on 12.11.2009 at 11 a.m. It is stated
that the notice was received only in the afternoon of 12.11.2009.
However, the petitioner had submitted detailed objections to the
proposal for assessment, as evidenced from Ext.P4. It is further
evident from the postal acknowledgement card produced along
with Ext.P4, that the objections were received by the respondent
only on 5.12.2009. It is noticed that the impugned assessment
W.P.(C).35735/2009-J 2
order was issued on 26.11.2009, admittedly before receipt of the
objections.
3. It is submitted by the petitioner that he has got
serious objections against the assessment, because the contract
undertaken by the petitioner is not with respect to sale of any
goods, but it is only a works contract. From the circumstances
stated above, it is clear that at the time when assessment order
is issued, the objections were not available before the
respondent. Eventhough learned Government Pleader appearing
on behalf of the respondent contended that the petitioner could
have approached the authority with the objections within a
reasonable time after receipt of notice, I find that the impugned
order is passed within few days of receipt of the notice by the
petitioner. At any rate, it is clear that the petitioner was
deprived of proper opportunity to raise his contentions against
the assessment. Hence in the interest of justice I am of the
opinion that the mater need re-consideration at the hands of the
respondent.
4. Under the above circumstances Ext.P5 order is hereby
quashed. Petitioner is directed to appear for a personal hearing
before the respondent on 30.12.2009. After affording an
opportunity of hearing and after adverting to contentions raised
W.P.(C).35735/2009-J 3
by the petitioner in Ext.P4, the respondent shall issue fresh
orders thereafter, as early as possible, at any rate within a
period of one month from the date of hearing of the matter.
The writ petition is disposed of as above.
C.K.ABDUL REHIM, JUDGE.
okb