IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH TUESDAY, THE 17TH FEBRUARY 2009 / 28TH MAGHA 1930 WP(C).No. 28297 of 2008(R) ------------------------------------------------ PETITIONER(S): ---------------------- GRACY THOMAS, PROPRIETOR, GRACE POULTRY FARM, KOMBODINJAMAKKAL, THRISSUR DISTRICT, PIN 680 697. BY ADV. SRI.S.ANIL KUMAR (TRIVANDRUM) RESPONDENT(S): ------------------------- ASST. COMMISSIONER (ASSMT.) COMMERCIAL TAXES (SPECIAL CIRCLE), THRISSUR. BY GOVERNMENT PLEADER SRI.C.K.GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 28297 OF 2008 R -------------------------------------- Dated this the 17th February, 2009 JUDGMENT Petitioner calls in question Ext.P2. Ext.P2 is an order of assessment completed on the petitioner under the KGST Act for the assessment year 2004 - 05. Case of the petitioner is woven around the plea of limitation based on the third proviso to sub- section (6) of Section 17 of the Act. Sub-section (6) and the third proviso provide as follows: “17. Procedure to be followed by the assessing authority:- (6) Any assessment under this Section shall be completed within a period of five years from the expiry of the year to which the assessment relates: Provided also that any assessment, other than an assessment falling under sub-section (4) or sub- section (4A), shall be completed within four months from the last date of checking of the books of accounts for the purpose of assessment for the year or within six months from such date with the permission of the next higher authority.” WPC.28297/08 R 2 2. It is the case of the petitioner that the respondent had called for the Books of Accounts of the petitioner on 29.9.2006. He affixed the seals and initialled on the relevant pages. It is her further case that since the Accounts were so checked, assessment should have been completed within four months from the last date of checking of the Accounts. Ext.P2 is after a period of twentytwo months from the date of checking. The assessment order is dated 15.3.2007 and the demand notice is dated 11.8.2008. Further, reliance is placed on the decision of a Division Bench of this Court in Govt. Wood Workshop v. State of Kerala (1987 (1) KLT 804), wherein this Court has, inter alia, taken the view that to make an order complete and effective, it should be issued so as to be beyond the control of the Authority concerned and this should be done within the prescribed period, though the actual service of the order may be beyond that period. 3. A Statement is filed. Therein, it is, inter alia, stated as follows: WPC.28297/08 R 3 The Accounts were finally checked only on 8.3.2007. At the time of inspection on 29.9.2006, the petitioner could not produce entire records, accounts and other evidences, bills relating to purchase of assets, Bank pass book, stock register of C Form etc. which are mandatory records. Annexure R1(a) is produced as a Check Note. The assessing authority had to wait a long period and it was only after issue of pre-assessment notice that the petitioner produced the records. Accounts were finally checked on 8.3.2007 and Ext.P2 assessment order was finally passed on 15.3.2007. It is stated that the decision referred by the petitioner in Govt. Wood Workshop v. State of Kerala (1987 (1) KLT 804) is not applicable in the facts and circumstances of the instant case. 4. A Reply Affidavit is filed, wherein the allegations are reiterated, regarding the impact of the third proviso and it is pointed out that Ext.P2 assessment order was issued only on or after 4th August, 2008 ie. the date on which the demand notice forming part of the assessment order was written. 5. I heard the learned counsel for the petitioner and the learned Government Pleader. Learned Government Pleader would submit that actually Ext.P2 was collected by the WPC.28297/08 R 4 petitioner and it was not issued on a date which was within the period of limitation. I see no reason why the principle enunciated in Govt. Wood Workshop v. State of Kerala (1987 (1) KLT 804) should be held inapplicable in the context of the bar of limitation created under the third proviso to Section 17(6) of the Act. The Officer was expected to issue the assessment order. It had to be issued within the period of limitation. Admittedly, this was not done. This renders the order vitiated as barred beyond the period. It is to be noted that it is only on account of the fact that the Officer did not proceed to issue the order that the assessment which was otherwise passed within the period, is found to be liable to be quashed. But, the inexorable effect of the law cannot be avoided and I follow the decision of this Court and allow the Writ Petition and quash Ext.P2. Sd/= kbk. K. M. JOSEPH, JUDGE // True Copy // PS to Judge