IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 4TH OCTOBER 2010 / 12TH ASWINA 1932 WP(C).No. 28430 of 2010(C) --------------------------------------- PETITIONER(S): ------------------------ M/S.PRESTIGE ESTATES PROJECTS LTD., NO.32, BAY PRIDE MALL, MARINE DRIVE, ERNAKULAM, KOCHI - 31, REPRESENTED BY THANKACHAN THOMAS.V., HEAD - BUSINESS OPERATIONS - KERALA. BY ADV. SRI.HARISANKAR V. MENON, SMT.MEERA V.MENON, SRI.MAHESH V.MENON. RESPONDENT(S): ------------------------ 1. COMMERCIAL TAX OFFICER (WC), OFFICE OF THE DY.COMMISSIONER, COMMERCIAL TAXES, ERNAKULAM, KOCHI - 15. 2. THE INTELLIGENCE OFFICER, SQUAD NO.IV, DEPARTMENT OF COMMERCIAL TAXES, EDAPPALLY, KOCHI - 682 024. 3. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. R1 TO R3 BY GOVT. PLEADER MR.C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/10/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.28430 of 2010 ------------------------------------------- Dated this the 4th day of October, 2010 J U D G M E N T ---------------------- Through Ext.P2 order, assessment was finalised against the petitioner for the period from 1.4.2008 to 30.9.2008. It was before this court in WP(C).No. 549/2010. In Ext.P3 judgment, this court set aside Ext.P2 and the 1st respondent was directed to consider the matter and to pass fresh orders, after affording an opportunity of hearing to the petitioner, within a period of one month of receipt of a copy of that judgment. Ext.P3 judgment was pronounced as early as on 22.1.2010. Complaint of the petitioner is that the 1st respondent had failed to issue modified orders in compliance with the directions contained in Ext.P3 judgment, and at the same time the 2nd respondent had issued Exts.P4 to P7 notices proposing imposition of penalty under Section 67(1) of the Kerala Value Added Tax Act, 2003 (KVAT Act) with respect to various periods from 2006-07 to 2009-10. 2. It is contended that, liability for imposing penalty as proposed is dependent on the question regarding W.P.(C).28430/10- -2- exigibility of tax with respect to transactions undertaken by the petitioner which are in the nature of contracts entrusted with others. Contention of the petitioner is that turnover relating to such works has to be assessed at the hands of the contractors and petitioner is not liable for payment of tax on such turnover. It is contended that the non-finalisation of assessment pursuant to Ext.P3 judgment and the simultaneous proceedings initiated for imposition of penalty, is highly arbitrary and unreasonable. Therefore the petitioner seeks directions to restrain the 2nd respondent from finalizing the proceeding pursuant to Ext.P4 to P7 notices till consequent orders are passed by the 1st respondent pursuant to Ext.P3 judgment. 3. Learned Government Pleader on the basis of instructions submitted that after Ext.P3 judgment the petitioner was invited for hearing on several occasions, but he has not co- operated with the proceedings. It is stated that the penalty notices issued by the 2nd respondent is an independent proceedings and the petitioner is not entitled to seek deference of that proceedings on the ground that modified order of assessment has not been issued. 4. Having considered the facts and circumstances of the W.P.(C).28430/10- -3- case, I am of the opinion that the writ petition can be disposed of directing the 1st respondent to finalise the matter pursuant to Ext.P3 judgment, within a time frame. 5. The petitioner is directed to appear before the 1st respondent within a period of two weeks from today and on such appearance the 1st respondent shall conduct hearing of the matter either on the same date itself or on any date to which the hearing will be posted. The petitioner shall co-operate with finalisation of the assessment by producing whatever supportive documents in his possession. The 1st respondent will be at liberty to proceed the matter on an ex-parte basis, if there is non co-operation from the side of the petitioner. At any rate, modified order pursuant to Ext.P3 shall be issued within a period of 6 (six) weeks from today. 6. The 2nd respondent is directed to keep in abeyance passing of final orders pursuant to Ext.P4 to P7 notices, till orders are passed by the 1st respondent as directed above. C.K.ABDUL REHIM, JUDGE. okb