IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 31ST AUGUST 2010 / 9TH BHADRA 1932 WP(C).No. 26577 of 2010(V) -------------------------- PETITIONER(S): --------------- M/S.ROTANA INNS (P) LTD., HOTEL RAJ JESIDENCY, KALLUVATHUKKAL, KOLLAM, REPRESENTED BY ITS MANAGING DIRECTOR THYAGARAJAN. BY ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.P.GOPINATH RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM- 695 001. 2. THE INTELLIGENCE OFFICER, INTELLIGENCE SQUAD NO.1, COMMERCIAL TAXES DEPARTMENT, PATTATHANAM P.O., KOLLAM-21. 3. THE INSPECTING ASSISTANT COMMISSIONER (INTELLIGENCE), COMMERCIAL TAXES, PATTATHANAM PO, KOLLAM 21. SENIOR GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K. ABDUL REHIM, J ------------------------------------ WP(C) NO. 26577 OF 2010 -------------------------------------------- Dated this the 31st day of August, 2010 JUDGMENT Challenge in this Writ Petition is against Ext.P9 order issued under Section 45 A of the Kerala General Sales Tax Act (KGST Act), imposing penalty on the petitioner to the tune of Rs.7,16,100/-. According to the petitioner, before passing the impugned order, a proposal notice, as evidenced from Ext.P6, was issued. The petitioner had submitted Ext.P7 petition supported by an affidavit before the second respondent requesting to seek and obtain expert opinion on the issues pertaining to calculation of average gross profit, with respect to the items dealt with by the petitioner. Through the said petition it was stated that opinion from experts like Professors and Heads of the Department of any of the Universities or from any other such competent persons is need to be obtained in order to ascertain as to correctness of the method of calculation adopted by the second respondent in arriving at the figures mentioned in Ext.P6 notice, especially with respect to average gross profit. 2. According to the petitioner, Ext.P7 was submitted to the second respondent along with a vakkalath duly executed in favour of his counsel. His complaint is that the second respondent had issued the impugned order Ext.P9 within three hours of receipt of Ext.P7 application. 2 WP(C) No. 26577/2010 It is also submitted that in Ext.P7, the petitioner had raised only preliminary objections against to the proposal and that he had specifically mentioned that after obtaining expert opinion, the petitioner should be afforded with opportunity to file detailed reply against the proposal. 3. Under the above circumstances, it is the contention of the petitioner that eventhough, an effective statutory remedy by way of appeal is provided against Ext.P9, he can assail the same in this Writ Petition, because Ext.P9 is patently illegal and suffers from non compliance of natural justice. According to the petitioner, it is an order passed without application of mind and without proper advertance to the preliminary request made by the petitioner. It is also the complaint that no opportunity of personal hearing was afforded before passing Ext.P9. 4. Under the Scheme of the statute against an order imposing penalty under Section 45 A, an effective remedy of appeal is provided. If the impugned orders suffers from any infirmity including non compliance of principles of natural justice, the petitioner can very well raise all such contentions in a validly constituted appeal. If the appellate authority is convinced that there is clear violation of the mandatory provision contained in the statute or that the order was issued without affording reasonable opportunity to the petitioner in violation of principles of natural justice, the appellate authority can considered all those aspects and take appropriate 3 WP(C) No. 26577/2010 decision, especially because of the fact that the powers vested in the appellate authority are co-extensive with that of the second respondent. 5. In the above circumstances, I am not inclined to entertain challenge against Ext.P9, exercising jurisdiction under Article 226 of the Constitution of India. Hence the Writ Petition is dismissed without prejudice to rights of the petitioner to seek appropriate remedy against Ext.P9 order. 6. It is observed that if there is any delay caused in filing the statutory appeal, the petitioner is at liberty to appraise the appellate authority and to seek condonation on the ground that he has challenged Ext.P9 in this Writ Petition and the same was pending disposal before this Court. It is also made clear that the petitioner will be at liberty to seek appropriate interim relief from the appellate authority. The appellate authority concerned in such case shall issue orders disposing the interim petition without any delay. C.K. ABDUL REHIM JUDGE dnc