IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 35044 of 2010(E)
1. SMITHA PRASANTH,MKP MARKETING NET,
... Petitioner
Vs
1. THE COMMERCIAL TAX OFFICER,
... Respondent
For Petitioner :SRI.S.ANIL KUMAR (TRIVANDRUM)
For Respondent : No Appearance
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :01/12/2010
O R D E R
C.K.ABDUL REHIM, J.
-------------------------------------------
W.P.(C).No.35044 of 2010
-------------------------------------------
Dated this the 1st day of December, 2010
J U D G M E N T
———————-
Challenge in this writ petition is against
Ext.P3 order of assessment completed under the
provisions of Section 25(1) of the Kerala Value Added
Tax Act, 2003 (KVAT Act). The assessment pertains to
the year 2007-08. Normally this court may not be
inclined to entertain any challenge against an order of
assessment in view of availability of an effective
alternate remedy under the statute. But learned
counsel for the petitioner points out that, the order of
assessment was finalised in flagrant violation of the
mandatory procedure contemplated under the relevant
provision and also in violation of principles of natural
justice.
2. It is contended that after filing objections to
the proposal notice the petitioner was not afforded with
W.P.(C).35044/10 -2-
an opportunity of personal hearing. On a perusal of Ext.P3
it is evident that the assessing authority had considered the
objections. But nothing is reflected in the order to the
effect that an opportunity of hearing was afforded, after
filing of the objections, nor the order reveals about any
personal hearing conducted.
3. Learned Government Pleader appearing on behalf
of the respondents submitted that, as per the instructions
received, the respondent had conducted a personal hearing
at the time when the objections were filed. But it is clear
that, the opportunity for personal hearing contemplated
under the statute is to be afforded at the time of finalisation
of the assessment. It is settled law by this time through the
decision of this court in Suzion Infrastructure Service Ltd.
Vs. C.T.O. (2010 (3) KHC 299) that, affording of an
opportunity of personal hearing after submission of
objections, is not an empty formality and any violation in
affording such opportunity will vitiate the assessment.
4. Under the above circumstances I am of the
W.P.(C).35044/10 -3-
considered opinion that the order of assessment impugned
is not sustainable in the eye of law and there is deficiency in
compliance of proper procedure contemplated under the
statute and also there is violation of the principles of natural
justice.
5. In the result the writ petition is allowed. Ext.P3
order is hereby quashed. The respondent is directed to
finalise the assessment afresh, after affording a reasonable
opportunity of hearing to the petitioner. Needless to say
that the petitioner will be at liberty to produce documents
or Books of Accounts in support of objections.
6. Fresh orders in this regard shall be issued as
early as possible, at any rate within a period of one month
from the date of receipt of a copy of this judgment.
C.K.ABDUL REHIM, JUDGE.
okb