IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 6TH OCTOBER 2009 / 14TH ASWINA 1931 WP(C).No. 26221 of 2009(W) -------------------------- PETITIONER: --------------- M.A.SHAJAHAN, PROPRIETOR, IDEAL PLAST, MEENTHARAKKAL HOUSE, THAIKKATTUKARA P.O., KUNNATHERI, ALUVA-6. BY ADVS. SRI.HARISANKAR V. MENON SMT.MEERA V. MENON RESPONDENTS: --------------- 1. COMMERCIAL TAX OFFICER, ALUVA. 2. SPECIAL TAHSILDAR (RR), ALUVA. 3. FAST TRACK ASSESSMENT TEAM NO.VII, DEPARTMENT OF COMMERCIAL TAXES, MATTANCHERRY, REPRESENTED BY COMMERCIAL TAX OFFICER, ALUVA. BY GOVT. PLEADER SRI. C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: shg/ C.K. ABDUL REHIM, J - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 26221 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of October, 2009 J U D G M E N T 1. Challenge in this Writ Petition is against Exts.P5 & P6 assessment orders pertaining to the year 2002-03, & 2003-04, issued against the petitioner under Section 17 D of the Kerala General Sales Tax Act (KGST Act). The petitioner is challenging the assessment orders, without filing statutory appeal, on the ground that the same are issued without jurisdiction since the 3rd respondent had exceeded the limits prescribed under Section 17 D (2) (e) of the KGST Act. As per the above said provision in cases where the tax evaded cannot be quantified, the assessment is directed to be completed on an addition equal to 5% of the taxable turnover conceded by the dealer in his returns or accounts, subject to tax effect of a minimum of Rs.5,000/- and a maximum of Rs.1,00,000/-. Therefore it is clear that with respect to an assessment under Section 17D which is being W.P.(C)No. 26221 of 2009 -2- finalized by the Fast Track Assessment Team, addition on the turnover conceded as per return or accounts, can be effected only to the extent of 5%. But in the case at hand, the contention of the petitioner is that the addition made with respect to the purchase turnover under Section 5A is 60%. In the statement filed on behalf of the 1st respondent it is conceded that the addition of the turnover under Section 5 A has been effected with respect to the assessment relating to both the years, and the addition is only just and reasonable based on the materials collected by the assessing authority. 2. Having considered the contentions I notice that there is addition made in contrary to the mandate under Clause (e) of Sub Section 2 of Section 17 D. Such addition is against the limitations prescribed and is in clear violation of the statute. Therefore it is evident that the 3rd respondent had exceeded its jurisdiction in finalizing the assessment. Hence the impugned assessments are not sustainable in the eye of law. W.P.(C)No. 26221 of 2009 -3- 3. Under the above circumstances Exts.P5 & P6 assessment orders are hereby quashed, and the competent assessing authority is directed to make fresh assessment on the basis of materials available, in conformity with the relevant provision in the statute, if necessary after verification of books of accounts and other relevant records and after affording further opportunity to the petitioner. The assessment in this regard may be finalized as early as possible at any rate within a period of two months from the date of receipt of a copy of this judgment. C.K. ABDUL REHIM JUDGE shg/