IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 34918 of 2009(H)
1. SRI.P.SETHUMADHAVAN,
... Petitioner
Vs
1. THE COMMERCIAL TAX OFFICER,
... Respondent
2. THE STATE OF KERALA,
For Petitioner :SRI.E.P.GOVINDAN
For Respondent : No Appearance
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :04/12/2009
O R D E R
C.K.ABDUL REHIM, J.
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W.P.(C).No.34918 OF 2009
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Dated this the 4th day of December, 2009
J U D G M E N T
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1. Ext.P1 order of assessment issued under the Central
Sales Tax Act is challenged in this writ petition, without
resorting to statutory remedy of appeal available to the
petitioner. The challenge against Ext.P1 is mainly on the ground
that adequate opportunity was not given to the petitioner before
finalising the assessment. The assessment pertains to the year
2005-06. Petitioner claimed exemption with respect to the entire
turnover on the ground that the sale made by him are sale in
transit covered under Section 6(2) of the CST Act. But the
petitioner failed to produce C-forms and E-1 declarations in
order to substantiate the claim for exemption. It is stated in
Ext.P1 order that the petitioner had failed to produce the
required forms and declarations, inspite of notice. According to
the petitioner such notices were issued as early as in May 2009
and the petitioner had in fact sought adjournment for production
of the required forms, as evidenced from Ext.P3 letter. It is the
case of the petitioner that further notice was not issued and the
assessment was finalised behind his back. According to the
W.P.(C).34918/09-H 2
petitioner, though belated, he has received all the required C-
forms and E-1 declarations which are produced along with this
writ petition, as Ext.P4 and P5 series. Therefore the assessment
is totally unsustainable, is the contention.
2. The preliminary question to be considered is whether
there is a patent lack of jurisdiction or a patent erroneous
exercise of jurisdiction by the 1st respondent in finalising the
assessment which warrants interference of this court, even when
statutory remedy is not resorted to. Since the question
regarding violation of natural justice is in dispute, I am of the
opinion that it is a fit case to be taken up in appeal before the
statutory appellate authority. Further more, I notice that the
appellate authority is conferred with all the powers of the
assessing authority and if the petitioner could produce the forms
and declarations before that authority, definitely that can be
taken note of by the appellate authority. Under such
circumstances, I am of the opinion that the petitioner can be
relegated to the appellate authority to redress his grievances.
3. Accordingly the writ petition is disposed of directing
the petitioner to file statutory appeal against Ext.P1 order of
assessment, along with petition seeking interim relief, before the
appellate authority having jurisdiction, within a period of one
W.P.(C).34918/09-H 3
month from today. The petitioner can also produce all necessary
documents in support of his claim. If such appeal is received by
the appellate authority concerned within the time stipulated as
above, the appellate authority shall either dispose of the appeal
itself or the stay application, after affording an opportunity of
hearing to the petitioner, as early as possible, at any rate within
a period of one month from the date of filing of such appeal.
Needless to say that the appellate authority shall take note of all
the forms and declarations which will be produced by the
petitioner.
4. In order to facilitate the petitioner to approach the
appellate authority, coercive steps for realisation of the amounts
covered under Ext.P1 shall be kept in abeyance for a period of
six weeks from today.
C.K.ABDUL REHIM, JUDGE.
okb