IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN MONDAY, THE 1ST SEPTEMBER 2008 / 10TH BHADRA 1930 OP.No. 12908 of 2003(J) ----------------------- PETITIONER: ------------------- M/S. GLEN TEA FACTORY, GLEN MARY, PEERMADE, REPRESENTED BY MANAGING PARTNER, P.M. BABU. BY ADV. SRI.C.K.THANU PILLAI SRI.T.K.SHAIJ RAJ RESPONDENTS: --------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-1. 2. THE COMMISSIONER OF COMMERCIAL TAXES, PUBLIC OFFICE BUILDINGS, THIRUVANANTHAPURAM. 3. THE AGRICULTURAL INCOME TAX AND SALES TAX OFFICER, PEERMADE. 4. THE ASSISTANT COMMISSIONER (ASSESSMENT), SPECIAL CIRCLE (PRODUCE), MATTANCHERY. BY GOVERNMENT PLEADER SRI MATHEW VADAKKEL THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 01/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP NO.21938/2003 IN OP.NO.12908/2003 ------------- DISMISSED 1/9/2008 Sd/- P.R.RAMAN, JUDGE APPENDIX\ PETITIONER'S EXTS: EXT.P1 TRUE COPY OF THE CERTIFICATE DATED 18/4/01 ISSUED BY THE FORBES EWART & FIGGIS. EXT.P2 TRUE COPY OF NOTICE U/S 17(3) DATED 27/2/03 ISSUED BY 3RD RESPONDENT. EXT.P3 TRUE COPY OF THE REPLY LETTER TO PRE-ASSESSMENT NOTICE DTD. 12/3/03. EXT.P4 TRUE COPY OF THE ASSESSMENT ORDER DTD. 12/3/03 ISSUED BY THE 3RD RESPONDENT FOR THE YEAR 2000-01. EXT.P5 TRUE COPY OF CIRCULAR NO.19/91TX DTD. 24/12/91 ISSED BY THE 2ND RESPONDENT. EXT.P6 TRUE COPY OF CIRCULR NO.10/96/TX DTD. 22/2/96 ISSUED BY THE 2ND RESPONDENT. EXT.P7 TRUE COPY OF THE NOTIFICATION SRO NO.322/84 ISSUED BY THE IST RESPONDENT. EXT.P8 TRUE COPY OF NOTIFICATION SRO NO.1L727/93 DTD. 3/11/93 ISSUED BY THE IST RESPONDENT. EXT.P9 TRUE COPY OF CIRCULAR NO.27/02 DTD. 22/11/02 ISSUED BY THE 2ND RESPONDENT. EXT.P10TRUE COPY OF INTERIM ORDER PASSED BY THIS COURT. P.R.RAMAN, J. --------------------------- O.P.NO.12908 OF 2003 ---------------------------- DATED THIS THE 1st DAY OF AUGUST,2008 JUDGMENT Though service of notice is complete as against the 3rd respondent Agricultural Income Tax and Sales Tax Officer, no counter affidavit is filed. Notice to other respondents though issued not returned; but since the 3rd respondent is already served and other respondents are only Government statutory authorities, service of notice to them is declared as complete. 2. The learned counsel for the petitioner submits that by a common judgment dated 1/11/2004 in O.P.No.13076/2003 batch of original petitions were disposed of and the issue raised in the present original petition is squarely covered by the aforesaid judgment. A copy of the judgment in the batch cases was made available and I have perused the same. The challenge in those writ petitions was against the circular issued by the Commissioner of Commercial Taxes, which is produced as Ext.P9 in the present writ -2- O.P.No.12908/2003 petition. It is noticed that this Court in an earlier O.P.No.6965/2003 considered the scope of the modified circular and its effect on the earlier circular and by judgment dated 28/10/2004 it was held that the circular based on which notices were issued has since been modified, the proposal to reopen the assessment cannot be made as the very foundation based on which notices were issued has been withdrawn. In those circumstances, similar notices proposing to reopen the assessment were quashed, since they have no independent existence. Following the aforesaid decision, reliefs were moulded in the batch cases as referred to earlier and the notices issued were quashed. Since the very foundation of which the claim is based on Ext.P9 circular which has since been withdrawn, there is no basis to recover any amount. In the circumstances, the demand is quashed. P.R.RAMAN, Judge. kcv. -3- O.P.No.12908/2003 P.R.RAMAN, J. -------------------------- O.P.NO.12908 OF 2003 -------------------------- JUDGMENT 1st September, 2008 -4- O.P.No.12908/2003 P.R.RAMAN, J. -------------------------- O.P.NO. OF 1999 -------------------------- JUDGMENT/O R D E R 22nd July, 2008