IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 7TH DECEMBER 2010 / 16TH AGRAHAYANA 1932 WP(C).No. 35602 of 2010(A) ------------------------------------ PETITIONER(S): ---------------------- M/S.IMPERIAL COIR YARN TRADING CO. MAYITHARA P.O., CHERTHALA, ALAPPUZHA DISTRICT, REP. BY ITS PARTNER K.S.SUBASH. BY ADV. SRI.V.P.SUKUMAR RESPONDENT(S): ------------------------ 1. THE FAST TRACK ASSESSMENT TEAM NO.III, COMMERCIAL TAXES, ALAPPUZHA, REP. BY THE ASSISTANT COMMISSIONER (ASSMT.), SPECIAL CIRCLE, COMMERCIAL TAXES, ALAPPUZHA, 688001. 2. THE COMMERCIAL TAX OFFICER, CHERTHALA-688524. R1 AND R2 BY SR. GOVT. PLEADER SRI. C. K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DS WP(C).No. 35602 of 2010(A) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE TRADING, PROFIT AND LOSS ACCOUNT OF THE PETITIONER FIRM FOR 2003-04. P2: COPY OF THE ASSESSMENT ORDER DATED 28-06-2010 RECEIVED BY THE PETITIONER FROM THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ PA TO JUDGE DS C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.35602 of 2010 ------------------------------------------- Dated this the 7th day of December, 2010 J U D G M E N T ---------------------- Ext.P2 assessment finalised by the Fast Track Assessment Team (1st respondent) resorting to Section 17D of the Kerala General Sales Tax Act, 1963 (KGST Act) is under challenge in this writ petition. The order of assessment is challenged without resorting to statutory remedy of appeal, on the ground that it was completed without affording any reasonable opportunity to the petitioner for production of Books of Accounts or for submitting objections against the proposal notice. 2. Facts narrated in the writ petition is to the effect that, the factory premises of the petitioner remained closed, as taken over by the Bank consequent to default committed in repayment of the loan availed. Since the Books of Accounts were in the premises attached by the Bank, the petitioner could not produce the same, when called for. It is also contended that the proposal notice was not received and hence the petitioner could not submit any reply/objections to the proposal. Contention of the petitioner is to the effect that the assessment was completed in a unilateral manner levying tax at the rate of 12% on the entire turnover, ignoring the fact that the turnover on sales of Coir W.P.(C).35602/10 -2- products is exempted and the rate of tax applicable to Jute products is only 4%. They also contended that no tax is payable on the turnover of export sales. 3. On a perusal of the impugned assessment it is evident that, the reason mentioned for non-production of Books of Accounts was got verified by the assessing authority. The fact that the premises was taken over possession by the Bank is evident from the order. So also it is evident that the proposal notice was served only through affixure because the place of business remained closed, as attached by the Bank. 4. Learned counsel for petitioner pointed out that the impugned assessment is vitiated since there is violation of principles of natural justice. Provisions under Rule 63 of the KGST Rules is brought to my notice in order to contend that the method of affixure for service can be adopted only if all the three methods provided under clause (a) to (c) are impracticable. He relied on the decisions reported in 1980 KLT 770 and 1967 STC 79 in support of the above proposition. 5. Considering the facts and circumstances, I am of the view that the impugned assessment under Section 17D was finalised without affording adequate and reasonable opportunity to the petitioner to present their case. It is evident that the assessing authority had not adopted any other methods W.P.(C).35602/10 -3- contemplated under Rule 63(a) to (c), but finalised the assessment after effecting affixure of notice. Hence I am of the considered opinion that the impugned assessment will not satisfy compliance of principles of natural justice and proper compliance of the mandatory procedure. 6. For the reasons stated above, the writ petition is allowed and Ext.P2 order of assessment is hereby quashed. Respondents 1 and 2 are directed to finalise the assessment afresh, either under Section 17(3) or under Section 17D of the KGST Act, as the case may be, on issuing fresh notice both in the address of the place of business and residence of the authorised persons representing the petitioner, and after affording proper opportunity to the petitioner for filing objections and for production of Books of Accounts or documents in support of their claims. 7. The assessment as directed above shall be finalised as early as possible, at any rate within a period of three months from the date of receipt of a copy of this judgment. C.K.ABDUL REHIM, JUDGE. okb