IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 18571 of 2008(J)
1. M/S.ARVIND BRANDS LTD.
... Petitioner
Vs
1. ASST.COMMISSIONER(ASSMT),
... Respondent
2. DEPUTY COMISSIONER APPEALS, DEPARTMENT
For Petitioner :SRI.ARIKKAT VIJAYAN MENON
For Respondent : No Appearance
The Hon'ble MR. Justice K.M.JOSEPH
Dated :20/06/2008
O R D E R
K.M.JOSEPH, J.
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WP.(C) No. 18571 of 2008
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Dated this the 20th day of June, 2008
JUDGMENT
Ext.P1 is an order of assessment passed against the petitioner
under the best judgment assessment for the year 2004-2005. Petitioner
preferred Ext.P2 appeal. By Ext.P3 judgment this court directed the
appellate authority to take up the appeal out of turn and dispose of the same
within two months from the date of deposit of the amount. It is while so,
petitioner received Ext.P4 notice proposing to re-open the assessment
under Section 19 of the General Sales Tax Act. Petitioner filed objection as
Ext.P5. Essentially it is pointed out that the assessment order was under
appeal and the appeal will be taken up within three weeks from the date of
objection and asked for time. However, overruling the said objection
Ext.P6 order was passed, by which the petitioner is assessed to pay balance
sum of Rs.83,79,823/-.
2. I heard learned counsel for the petitioner Sri. Harisankar V.
Menon and the learned Government Pleader.
3. Learned counsel for the petitioner submits that in this case
the total and taxable turnover as shown in Ext.P6 is the one which is
determined by Ext.P1 order. Ext.P1 is carried in appeal. The appeal is
WPC. 18571/2008. 2
pending and going by Ext.P3 judgment the matter is to be disposed of out of
turn. While so, the order passed under Section 19(1) of the Kerala General
Sales Tax Act without considering the total and taxable turnover and merely
referring to Ext.P1 order is not correct. He would also rely on the decision
of this court reported in Importex International (P) Ltd. v. State of
Kerala (1991(1) KLT 281), wherein this court held that the effect of
re-opening is to vacate or set aside the initial order and substitute in its
place the order made in the re-assessment.
4. Learned Government Pleader points out that though when
there is re-opening of assessment under Section 19(1), the initial
assessment order cannot survive, the initial order is referred to in Ext.P6
only to show the amount of the total turnover and taxable turnover. In
other words, apparently the contention is that the figure arrived at by the
assessing authority in Ext.P1 order is not sought to be re-opened as such.
Re-opening was necessitated only on account of the penalty and it is this
subsequent event which has led to the passing of Ext.P6 order, he contends.
5. I would think that the petitioner has an effective remedy by
way of appeal against Ext.P6 order. Undoubtedly, going by the decision
reported in Importex International (P) Ltd.’s case the original assessment
WPC. 18571/2008. 3
order Ext.P1 cannot survive the passing of Ext.P6 and it is for the petitioner
to raise all the contentions available to it against the findings in the order
itself (Ext.P6) before the appellate authority.
Without prejudice to the right of the petitioner to raise all the
contentions and also to seek such interim relief, if he is so advised, the writ
petition is disposed of.
(K.M. JOSEPH, JUDGE)
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