IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 33808 of 2009(U)
1. MOHAMMED ALI, AGED 42 YEARS,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. APPELLATE ASSISTANT COMMISSIONER,
3. ASSISTANT COMMISSIONER (KVAT)
4. COMMERCIAL TAX OFFICER (WORKS
For Petitioner :SRI.SANTHEEP ANKARATH
For Respondent : No Appearance
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :18/12/2009
O R D E R
C.K. ABDUL REHIM, J.
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W.P.(C)No. 33808 of 2009
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Dated this the 18th day of December, 2009
J U D G M E N T
1. Exts.P4 & P5 assessments completed under the
provisions of Section 17 D of the Kerala General Sales Tax
Act, 1963 (KGST Act) is under challenge. Eventhough the
petitioner filed appeal against those assessments, the same
were not entertained for want of remittance of the tax
amount, as stipulated in 17 D (5) of the KGST Act. The
petitioner has raised challenge against validity of Section 17
D (5). But the question stands covered by a decision of a
Division Bench of this court. Through amendment of the
writ petition, the petitioner raise further challenges to the
effect that Exts.P4 & P5 are not sustainable. It is noticed
that a Division Bench of this court while upholding validity
of Section 17 D observed as follows:
“Eventhough 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 procedureW.P.(C)No. 33808 of 2009
-2-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) of 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
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
W.P.(C)No. 33808 of 2009
-3-
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 above”.
2. In view of the directions contained in the Division
Bench Judgment cited supra (Hindustan Petroleum Corporation
W.P.(C)No. 33808 of 2009
-4-
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 assessment in this writ
petition is not sustainable and hence matter needs fresh
disposal by the authority concerned.
3. Therefore the writ petition is allowed quashing
the impugned assessment finalised under section 17 D and
also the consequential demand 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 assessment
taking into consideration 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 the petitioner as directed above.
C.K. ABDUL REHIM
JUDGE