IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH FRIDAY, THE 31ST OCTOBER 2008 / 9TH KARTHIKA 1930 WP(C).No. 30436 of 2008(W) -------------------------- PETITIONER(S): --------------- SRI.E.V.SHIBU, PROPRIETOR, ELUVATHUNGAL MARKETING COMPANY, SUPREME TOWER, N.H.47,MAIN ROAD, CHALAKUDY,TRICHUR DISTRICT. BY ADV. SRI.E.P.GOVINDAN RESPONDENT(S): --------------- 1. THE COMMERCIAL TAX OFFICER (AA) COMMERCIAL TAXES, TRICHUR. 2. THE COMMKISSIONER, COMMERCIAL TAXES, TRIVANDRUM 3. STATE OF KERALA REPRESENTED BY SECRETARY, TAXES DEPARTMENT GOVERNMENT SECRETARIAT, TRIVANDRUM. BY GOVERNMENT PLEADER ADV.SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH, J. ```````````````````````````````````````````````````` W.P.(C) No. 30436 OF 2008 W ```````````````````````````````````````````````````` Dated this the 31st day of October, 2008 J U D G M E N T Petitioner challenges Ext.P1 and seeks direction to dispose of Ext.P6. A declaration is sought that the 1st respondent has no jurisdiction under section 25 of the KVAT Act. Ext.P1 is the revised assessment order passed by the 1st respondent dated 15.4.2008. 2. I heard learned counsel for the petitioner Sri.E.P.Govindan and learned Government Pleader. Essentially three points are raised by the learned counsel for the petitioner. Firstly, he submits that Ext.P1 is passed without affording an opportunity of hearing to the petitioner. It is his case that he filed his objections to the pre-assessment notice dated 15.4.2008 and without affording an opportunity of hearing, the order came to be passed on 15.4.2008. He also relies on the judgment of this Court in M.S.Jewellery Vs. Assistant Commissioner(Assessment) and Another [1997 STC 455]. Therein, a Bench of this court took the view that WPC.30436/08 : 2 : the learned single Judge erred in dismissing the writ petition by relegating the petitioner to seek statutory remedy by way of appeal. That was a case where in reply to the pre- assessment notice, objections were filed on 16.4.2008. The assessing authority passed the order of assessment on the very same day. The second contention of the petitioner is that having regard to the turnover involved in this case, which is above Rs.1 crore, Circular No.8/2008 mandates the assessment is to be completed by an officer not below the rank of an Assistant Commissioner. This ground is not taken in the writ petition. He further submits that section 25 of the KVAT Act has no application in this case. He also submits that the order is arbitrary and it may be set aside and a revised order may be passed. He further points out that the amount involved is Rs.2 crores. He also relied on the judgment of this court in Finimole Vs. Assistant Commissioner [2008 (3) KLT 794]. That was a case under section 26 of the KVAT Act where the Division Bench found that going by the averments in the notice, it did not fulfill the WPC.30436/08 : 3 : elements of the provision and interfered with the matter. 3. Per contra, learned Government Pleader points out that this is a case where the accounts are verified on 16.5.2007 and audit report was received on 28.2.2008. Pre- assessment notice was issued on 19.3.2008 and the petitioner was given 7 days time, it is submitted. It was served on 22.3.2008. The petitioner's representative appeared and applied for 30 days time on 28.3.2008. Ten days time was granted and the matter stood posted to 7.4.2008. A further adjournment was sought and the matter was posted to 15.4.2008. It is stated that the objection dated 15.4.2008 was filed on 17.4.2008. There was no appearance on 15.4.2008 and it was in such circumstances the order came to be passed on 17.4.2008. He also sought to justify the order with reference to the facts. Prima facie, I would think that this is not a fit case for interference by this court under Article 226 of the Constitution. I feel that it is for the petitioner to approach the authority seeking alternate remedy of preferring appeal. Ext.P6 is a petition filed taking suo motu WPC.30436/08 : 4 : action. This court cannot under Article 226 direct a decision to be taken on the basis of suo motu powers. There is no legal right to seek the exercise of suo motu power. It is for the authority to take a decision in the purported exercise of the provision conferring such power and no writ will lie to direct consideration of the petition for taking action under provision granting power to suo motu action. In such circumstances, writ petition is disposed of without prejudice to the petitioner to approach the statutory authority. I make it clear that when the statutory authority considers the matter, he will exercise the power totally untrammeled by anything stated by me in this judgment. If an appeal is filed within two weeks from today, the appeal will be treated as filed in time and a decision will be taken on merits. Proceedings will be kept in abeyance for three weeks from today. Sd/- (K.M.JOSEPH, JUDGE) aks // TRUE COPY // P.A. TO JUDGE