IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 21ST FEBRUARY 2011 / 2ND PHALGUNA 1932 WP(C).No. 1153 of 2011(T) ------------------------------------- PETITIONER: ------------------- M/S. KABEER TRADERS, VII, 614, JEW TOWN, COCHIN - 682 002, REPRESENTED BY ITS MANAGING PARTNER, SRI.C.M. ASHRAF. BY ADV. SRI.TOMSON T.EMMANUEL. RESPONDENTS: ------------------------ 1. COMMERCIAL TAX OFFICER, IST CIRCLE, COMMERCIAL TAXES, MATTANCHERRY, COCHIN - 682 002. 2. COMMISSIONER OF COMMERCIAL TAXES, COMMERCIAL TAXES, THIRUVANANTHAPURAM-695 033. R1 & R2 BY SR. GOVERNMENT PLEADER SRI. C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.1153 of 2011 ------------------------------------------- Dated this the 21st day of February, 2011 J U D G M E N T ---------------------- The petitioner was issued with Ext.P2 notice proposing finalisation of assessment under the CST Act for the year 2005-'06, Ext.P2(a) is the notice of proposal for finalising the assessment under Section 25(1) of the Kerala Value Added Tax Act, 2003 (KVAT Act) with respect to the year 2008-09 and Ext.P2(b) is the notice for finalising assessment under the CST Act with respect to the year 2008-'09. According to the petitioner on receipt of the above said notices he had submitted Ext.P3 and P3(a) letters seeking enlargement of time for filing objections. Subsequently it is mentioned that the petitioner had filed Ext.P4, P4(a) and P4(b) objections against the proposals. But without considering those objections the 1st respondent had finalised assessment under Section 25(1) of the KVAT Act with respect to the year 2008-09, through Ext.P7 order and a consequential demand notice was issued. This writ petition is filed challenging Ext.P7. 2. Contention of the petitioner is that the reply to Ext.P2(a) notice as evidenced from Ext.P4(a) was submitted in the office of the 1st respondent directly by getting endorsement in the Local Delivery Book, copy of which is produced as Ext.P6. It is evident that the objection was submitted on 30.12.2010. But it is evident W.P.(C).1153/11 -2- from Ext.P8, through which Ext.P7 order was despatched to the petitioner, that the same was sent from the office of the 1st respondent only on 10.1.2011. Under the above circumstances, contention of the petitioner is that the objection submitted under Ext.P4(a) was available with the 1st respondent at the time when Ext.P7 order was despatched and there was a failure on the part of the 1st respondent in considering those objections. The petitioner relies on the dictum laid by a Division Bench of this court in Cochin Plantations Ltd. Vs. State of Kerala ((1999) 7 KTR 318 (Ker)). In that case this court observed that it is not enough that the order is made, signed and kept in the files, because such orders may be liable to change at the hands of the authority who may modify it, or even destroy it before it is made known, based on subsequent information, thinking or change of opinion. To make the order complete and effective it should be issued, so as to be beyond the control of the authority concerned. In the case at hand, since the order was despatched only on 10.1.2011, well after receipt of the objections by the 1st respondent, it is contended that there is non consideration of the objections and hence Ext.P7 order is not sustainable. 3. During pendency of the writ petition the 1st respondent had issued a further order finalising CST assessment with respect to the year 2005-'06. Similar contention as above was raised W.P.(C).1153/11 -3- against Ext.P7 also, on the fact that the said order was despatched from the office of the 1st respondent only on 8.2.2011. 4. Learned Government Pleader appearing on behalf of the respondents, referring to the statement filed contended that Ext.P7 order was signed by the 1st respondent on 20.12.2010 which fact is evident from the dated signature put on the accompanying demand notice also. Merely because there was delay in despatching the order it could not be said that the order was not issued on 20.12.2010. Even if any objection was received thereafter, the 1st respondent is not bound to consider the same since the order stands already issued, is the contention. 5. Considering the rival submissions I am of the view that there exists a controversy as to whether Ext.P7 and P9 orders were issued after receipt of the objections submitted. However, I am of the opinion that the controversy need not be resolved since it is evident that the assessments were finalised without taking note of the objections submitted by the petitioner. It is clear and evident that on receipt of proposal notices (Ext.P2, P2(a) and P2(b)) the petitioner sought time for filing objections. It is also evident that the petitioner had subsequently filed objections as evidenced from Ext.P4, P4(a) and P4(b) which was submitted at the office of the 1st respondent on 30.12.2010. Under the above circumstances I am of the view that interest of justice will be served if the 1st respondent W.P.(C).1153/11 -4- is directed to pass fresh orders on the basis of those objections, after affording an opportunity of hearing to the petitioner. 6. Under the above circumstances, I am remitting the matter to the 1st respondent for taking a fresh decision. Therefore the writ petition is disposed of quashing Ext.P7 and P9. The 1st respondent is directed to consider Ext.P4, P4(a) and P4(b) objections submitted by the petitioner and to pass fresh orders on the basis of proposals issued (Ext.P2, P2(a) and P2(b)), after affording an opportunity of personal hearing to the petitioner. Needless to say that the petitioner shall be afforded with opportunity to produce documents if any in support of his objections. 7. Fresh orders in this regard shall be issued by the 1st respondent as early as possible, at any rate within a period of one month from the date of receipt of a copy of this judgment. With respect to Ext.P2, P2(a) and P2(b) notices the petitioner submits that he had made a request through Ext.P4(b) for return of defective C-Forms. Needless to say that the assessing authority while finalising the matter shall consider such request and take appropriate decision thereof. C.K.ABDUL REHIM, JUDGE. okb