IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 31ST AUGUST 2011 / 9TH BHADRA 1933 WP(C).No. 33032 of 2010(D) -------------------------- PETITIONER(S): --------------- M/S.PERIYAR CEMENTS (P) LTD., NIDA, KANJIKODE, PALAKKAD, REPRESENTED BY SYJU JOSE, DIRECTOR. BY ADV. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON SRI.MAHESH V.MENON RESPONDENT(S): --------------- 1. COMMERCIAL TAX OFFICER, 2ND CIRCLE, PALAKKAD. 2. COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SHRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.SIRI JAGAN, J. ================== W.P.(C).No. 33032 of 2010 ================== Dated this the 31st day of August, 2011 J U D G M E N T The petitioner is challenging Ext.P3 order of assessment passed by the 1st respondent under Section 17(3) of the KGST Act for the year 2004-05. The challenge against the assessment order, without resorting to statutory remedy of appeal, is on the ground that as per Ext.P1 circular issued by the 2nd respondent all assessments under the KGST Act for years up to 2004-05 shall be completed under Section 17D only. The petitioner seeks the following reliefs: “i) To quash Ext.P3 order passed by the 1st respondent by the issue of a writ of certiorari or such other writ or order or direction. ii) To direct the 1st respondent to finalize the assessment of the petitioner for the year 2004-05 only under Section 17D of the KGST Act by the issue of a writ of mandamus or such other writ or order or direction.” 2. The learned Government Pleader submits that as is clear from Section 17D itself, it is not compulsory that all assessments pending as on the first day of April, 2007, should be completed under the fast tract method insofar as the word used is “may” and not “shall”. He further submits that as per circular No.17/07 dated 12.4.2007, cases involving revenue potential, crime files or enquiry files or cases where protective assessment has been ordered to be taken, or cases where special investigations are in progress for those w.p.c.33032/10 2 years, would be continued to be dealt with in the usual manner and, therefore, there is nothing wrong with the proceedings under Section 17(3) instead of Section 17D. This is answered by the counsel for the petitioner citing that circular No.17/07 is dated 12.4.2007 and Ext.P1 is dated 25.5.2008 and therefore what is in force is Ext.P1. The learned Government Pleader submits that Ext.P1 is not even a circular but only a internal communication whereas circular No.17/07 is a circular. 3. I have considered the rival contentions in detail. 4. The Assistant Commissioner (Commercial) Taxes Department, Ernakulam, has categorically stated that a notice dated 18.8.2009 was issued to the petitioner informing him to opt for the assessment for the year 2004-05 as per the provisions of Section 17D and a notice was duly served on the dealer. It is submitted that the dealer did not co-operate with the said proposal and it is hence the fast track team could not proceed further with that notice. In answer to the same, the petitioner would contend that even if the petitioner had not co-operated, they could have very well proceeded ex-parte under Section 17D itself. 5. A learned Single Judge of this Court has in W.P.(C).No. 3171/2011 held that it is not mandatory that all pending assessments should be finalised under Section 17D itself and that there is no legal w.p.c.33032/10 3 impediment in the assessing authority finalising assessment by recourse to the normal procedure as contemplated under Section 17 (3). Going by Section 17D also, it is celar that it is the option of the assessing authority to proceed further under Section 17D or under Section 17(3). The petitioner has no answer to the counter affidavit, in which, it is stated that the petitioner was directed to opt for assessment under Section 17D and he has not responded to the said notice or co-operated with the assessment. In the above circumstances, I am not inclined to exercise my discretionary jurisdiction in favour of the petitioner. Accordingly, this writ petition is dismissed. However, this will be without prejudice to the right of the petitioner to challenge the impugned order in an appeal as provided under the Act. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge