IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 26TH OCTOBER 2010 / 4TH KARTHIKA 1932 WP(C).No. 32557 of 2010(T) -------------------------------------- PETITIONER: ------------------- BOBBY ABRAHAM, PARAMOUNT ENVIRO ENERGIES, KUMARANALLOOR P.O., KOTTAYAM-686 016. BY ADVS. SRI.S.ANIL KUMAR (TRIVANDRUM), SRI.K.S.HARIHARAN NAIR, SRI.K.UMAMAHESWAR. RESPONDENTS: ------------------------ 1. COMMISSIONER, COMMERCIAL TAXES, KERALA, THIRUVANANTHAPURAM-695 033. 2. COMMERCIAL TAX OFFICER, FIRST CIRCLE, COMMERCIAL TAXES COMPLEX, KOTTAYAM-686 001. R1 & R2 BY SR. GOVT. PLEADER SRI. C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/10/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. C. K. ABDUL REHIM, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= W.P.(C) No. 32557 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 26th day of October, 2010 JUDGMENT Petitioner is challenging Ext.P7 series orders of assessments finalized under section 25(1) of the the Kerala Value Added Tax Act, 2003. With respect to the product, “Biomass Gassifier”, there exists a dispute as to what should be the rate of tax payable. In this regard, the petitioner submitted Ext.P1 application under section 94 of the KVAT Act before the 1st respondent, seeking clarification. The said application is pending consideration and disposal. In the meanwhile, the 2nd respondent initiated steps for completing assessments against the petitioner, and also for imposing penalty. When the proposal notices were issued, the petitioner had approached this Court by filing W.P.(C) No. 30833/2010, which was disposed of in Ext.P5 judgment directing the 1st respondent or the appropriate authority under the Act to consider and pass orders on Ext.P1 application, after affording an opportunity W.P.(C) No. 32557/2010 2 of hearing to the petitioner, within a period of two months from the date of receipt of a copy of the judgment. But before communicating Ext.P5 judgment, the 2nd respondent issued assessment orders as per Ext.P7 series dated 27-9- 2010. It is submitted that those orders were despatched only on 8-10-2010 i.e., on the date on which Ext.P5 judgment was pronounced. 2. It is contended by the petitioner that Ext.P7 order is vitiated, since there is no compliance of the mandatory procedures contemplated under the Statute. It is pointed out that, on receipt of the proposal notices the petitioner had submitted applications before the 2nd respondent requesting to keep the matter pending till the disposal of Ext.P1 application by the 1st respondent. But without considering such request and without affording an opportunity to the petitioner for filing objections and also for personal hearing, the assessments were completed. It is contended that in a recent decision of this Court in Suzion Infrastructure Service Ltd. V. C.T.O. (2010(3) KHC 299) it W.P.(C) No. 32557/2010 3 was held that strict compliance of mandatory procedures contemplated under section 25(1) and adherence to principles of natural justice is highly essential and any failure in this regard will vitiate the order. 3. Considering contents of Ext.P7 series assessments, I am of the view that there was failure on the part of the 2nd respondent in proper compliance of the mandatory procedures and in providing sufficient opportunity to the petitioner. Under the above circumstances, Ext.P7 series orders are unsustainable in the eye of law and same is liable to be quashed. 4. Accordingly, Ext.P7 series orders are hereby quashed. The 2nd respondent is directed to keep in abeyance finalization of the assessments till orders are passed by the 1st respondent, in compliance with the directions contained in Ext.P5. Needless to say that as and when Ext.P1 is disposed of, the 2nd respondent will proceed with finalization of the assessments, in accordance with the outcome of such decision, after affording reasonable W.P.(C) No. 32557/2010 4 opportunity to the petitioner to file objections and for personal hearing. The writ petition is disposed of with the above directions. C. K. ABDUL REHIM, JUDGE. mn.