IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 36093 of 2009(F)
1. RAJI RAVEENDRAN,
... Petitioner
Vs
1. FAST TRACK TEAM NO.II, REPRESENTED BY
... Respondent
2. COMMERCIAL TAX OFFICER, PATTAMBI,
3. STATE OF KERALA,
For Petitioner :SRI.N.MURALEEDHARAN NAIR
For Respondent : No Appearance
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :15/12/2009
O R D E R
C.K.ABDUL REHIM, J.
------------------------------
W.P.(C).No.36093 OF 2009
------------------------------
Dated this the 15th day of December, 2009
J U D G M E N T
———————-
1. Challenge in this writ petition is against assessments
completed under the provision of Section 17D of the Kerala
General Sales Tax Act, 1963 (KGST Act). A Division Bench of
this court in a batch of cases filed challenging validity of Section
17 D, observed that if exorbitant demand of tax is as a result of
arbitrary orders issued, which according to the petitioner are
issued in violation of natural justice and without following the
mandatory procedure provided under section 17D, it is not as if
petitioners are totally without remedy. The constitutional remedy
under Article 226 is available in such cases and it will be open to
parties seeking relief against such orders to approach this court
and in such cases it is within the power of this court to mould
appropriate reliefs. With respect to the procedure to be followed
while passing assessments under section 17 D the Division
Bench 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 inW.P.(C).36093/09-F 2
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) 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
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 beW.P.(C).36093/09-F 3
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 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 assessments 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
W.P.(C).36093/09-F 4
for completing assessments taking into consideration of the
directions contained in the Division Bench judgment. The fresh
assessments as directed above shall be completed as early as
possible, at any rate within a period of two 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.
okb