IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH TUESDAY, THE 3RD JUNE 2008 / 13TH JYAISHTA 1930 WP(C).No. 13194 of 2008(U) ----------------------------------------------- PETITIONER: ------------------ SHAJUDEEN E.A, REHMATH MANZIL, KANJIRAPALLY, KOTTAYAM DISTRICT. BY ADV. SRI.BOBBY JOHN SRI.P.N.DAMODARAN NAMBOODIRI RESPONDENTS: ----------------------- 1. THE COMMERCIAL TAX OFFICER-1, PONKUNNAM. 2. THE DEPUTY COMMISSIONER, COMMERCIAL TAXES, KOTTAYAM. 3. THE DEPUTY TAHSILDAR,REVENUE RECOVERY, KANJIRAPALLY. 4. N.J.THOMAS AND CO, KOTTAYAM. 5. THE COMMERCIAL TAX OFFICER, PONKUNNAM. BY GOVERNMENT PLEADER SHRI C. K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 13194 OF 2008 U -------------------------------------- Dated this the 3rd June, 2008 JUDGMENT Petitioner, in proceedings under Article 226 of the Constitution of India, calls in question Ext.P14 Order of Assessment for the assessment year 2003 - 2004 and seeks a mandamus to issue a copy of the Verification Report of the Intelligence Officer which is referred to in Ext.P12 notice. 2. Briefly put, the case of the petitioner is as follows: Petitioner came to be served with pre-assessment notice dated 25.1.2008 and it was received on 31.1.2008. Petitioner filed Ext.P13 reply which is dated 2.2.2008. According to petitioner, the assessment is proposed on the basis of the Verification Report of the Intelligence Officer. It is a document which is relied on by the assessing authority. Hence while filing objections, petitioner requested that a copy of the said Report may be given to the petitioner. The impugned order dated WPC. 13194/2008 U 2 15.2.2008, however, came to be passed overruling the objections and also rejecting the request of the petitioner to give copy of the Verification Report. Petitioner calls in question Ext.P14 assessment order. 3. I heard the learned counsel for the petitioner and the learned Government Pleader. The case is taken up for hearing by consent of the parties and the Government Pleader submits that no Counter is necessary. 4. Counsel for petitioner submits that apart from everything-else, the procedure adopted by the assessing authority is one which has been discountenanced by this Court. He would submit that when an Authority relies on a document for the purpose of taking a decision, it is elementary that a copy of the said document should be made available, so that as a part of the principles of natural justice, the petitioner is afforded an opportunity to dis-abuse the authority of the views he has WPC. 13194/2008 U 3 formed on the strength of the said document. Principles of natural justice came to be contravened by the refusal of a copy of the Report, he submits. Further, more importantly, he submits that when the petitioner submitted his objections to the pre-assessment notice and they were found unacceptable by the assessing authority, it is incumbent on the assessing authority to afford an opportunity of hearing to the petitioner. In this connection, he drew my attention to the decision of this Court in Sri. C.K. Sunny v. Additional Sales Tax Officer - I ((2004) 12 KTR 360 Ker.), wherein it is, inter alia, held as follows: " When a pre-assessment notice is issued for the first time, a minimum period of two weeks at least must be given and whether the assessee seeks for a personal hearing or not, if the reply to an assessment notice is not acceptable, the assessee must be given a personal hearing to substantiate the objections. Failure to comply with the said formalities is not only against the provisions of Section 17(3) of the KGST Act and against the principles of natural justice, it is WPC. 13194/2008 U 4 against fairness in action, which will result in quashing the assessment orders as without jurisdiction." 5. Learned counsel for petitioner also relied on the decision of a Division Bench of this Court in Edakalathur Traders v. State of Kerala and Another ((2004) 12 KTR 90 (Ker.)) for the proposition that if an opportunity of being heard is not given for dealing with a document relied on, that will amount to violation of the principles of natural justice. 6. Learned Government Pleader points out that actually this is a case where the petitioner, though he had filed objections as claimed, has not signed the objection. 7. On a perusal of the impugned order, it is clear that while in the beginning the assessing authority states that the objections are not signed and therefore it is rejected, a perusal of the order would further show that the authority has considered the objections of the petitioner and proceeded to reject the same on merits. Once the latter course came to be adopted by the WPC. 13194/2008 U 5 assessing authority, it is evident that the authority was adopting a course which involves rejection of the objections on merits which he could have done only after an opportunity of being heard was given to the petitioner, going by the decisions of the Court aforesaid. Once this principle is found to be contravened, I feel that it is not necessary for me to drive the party to pursue the alternate remedy, as the contravention of the law is patent and violation of the principles of natural justice is an established exception to the general principle that Courts would not entertain Writ Petitions under Article 226 of the Constitution of India in the face of effective and efficacious alternate remedies available. In such circumstances, I am constrained to quash Ext.P14. It is pointed out by the parties that notice to the fourth respondent may not be necessary, in the nature of the relief that is being granted. Accordingly, the Writ Petition is disposed of without notice to the fourth respondent, quashing Ext.P14. There will be a direction to the fifth respondent to take up the assessment and after affording an opportunity of being heard to WPC. 13194/2008 U 6 the petitioner, complete the same in accordance with law, within a period of six weeks from the date of receipt of a copy of this Judgment. Petitioner will co-operate with the early disposal of the case. K. M. JOSEPH, JUDGE kbk.