IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM THURSDAY, THE 24TH DAY OF FEBRUARY 2011/5TH PHALGHUNA 1932 WP(C).No. 1708 of 2011 (K) --------------------------------- PETITIONER(S): ------------------- V.M.DINIL, PROPRIETOR, KOPPAM VENEERS, P.O.PULASSERY, PATTAMBI PALAKKAD. BY ADVS.SRI.N.MURALEEDHARAN NAIR SMT.K.HYMAVATHY RESPONDENT(S): -------------------- 1. THE COMMERCIAL TAX OFFICER, COMMERCIAL TAX DEPARTMENT, PATTAMBI PALAKKAD DISTRICT-679 306. 2. INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, PALAKKAD-678 001. BY GOVT.PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24-02-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 1708/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE OBJECTION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT 14/10/2010. P2: COPY OF THE OBJECTION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 30/10/2010. P3: COPY OF THE ASSESSMENT ORDER PASSED BY RESPONDENT FOR THE ASSESSMENT YEAR 2009 - 2010 DATED 18/10/2010. P4: COPY OF THE DEMAND NOTICE IN FORM NO.12 ISSUED BY 1ST RESPONDENT FOR THE YEAR 2009 - 2010 DATED 20/11/2010. P5: COPY OF THE DEMAND NOTICE U/S. 7 OF THE RR ACT ISSUED BY 2ND RESPONDENT DATED 11/01/2011. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs C.K.ABDUL REHIM, J. ------------------------------- W.P.(C).No. 1708 of 2011 ------------------------------- Dated this the 24th day of February, 2011. J U D G M E N T Ext.P3 order of assessment finalised with respect to the year 2009-10, under section 25(1) of the Kerala Value Added Tax Act (KVAT Act), is under challenge in this writ petition. The order is challenged without resorting to the statutory remedy of appeal, on the ground that the order is per-se illegal. Contention of the petitioner is that, the first respondent had failed in complying with the mandatory procedure contemplated under section 25(1) and also failed to adhere to principles of natural justice. It is the case of the petitioner that on receipt of a proposal notice dated 5.8.2010, he had submitted objections. Exts.P1 and P2 are the objections submitted in this regard. In the objections submitted, the petitioner had specifically requested for affording an opportunity of personal hearing and it was stated that the petitioner is ready and willing to produce Books of Accounts to substantiate his contentions. But the 2 W.P.(C).No. 1708 of 2011 assessing authority had discarded the objections without affording any opportunity to the petitioner to produce the Books of Accounts or any opportunity of personal hearing. Hence the order is unsustainable, is the contention. 2. On a perusal of the impugned order, it is revealed that the petitioner had filed objection against the proposal and the assessing authority had considered those objections. But nothing is discernible from the order to the effect that any opportunity of hearing was afforded before finalising the assessment. Learned government pleader on the basis of instructions submitted that the petitioner had appeared on 15.10.2010, and filed objections and a hearing was conducted on that day. The above fact is denied by learned counsel for the petitioner. However, I noticed that the objection was filed only on 15.10.2010. Even if it is assumed that the assessing authority had afforded any personal hearing for the person through whom the objection was submitted, it could not be considered as a proper opportunity of personal hearing for consideration of the 3 W.P.(C).No. 1708 of 2011 objections. 3. Learned counsel for the petitioner had specifically points out that, the opportunity of hearing contemplated under section 25(1) is not an empty formality and the denial of any such opportunity will vitiate the proceedings. He relies on the decision of this Court in Suzion Infrastructure Service Ltd. Vs. Commercial Tax Officer (W.C.), Ernakulam (2010(3) KHC 299 (Ker), in support of the above contention. 4. Considering the facts and circumstances as stated above, I am of the opinion that no effective opportunity of personal hearing was afforded as required under the provisions and in compliance of the principles of natural justice. Therefore, I am of the view that the impugned order is unsustainable. 5. Accordingly, the writ petition is disposed of quashing Ext.P3. The first respondent is directed to finalise the matter afresh, after affording a reasonable opportunity of hearing to the petitioner and also after affording 4 W.P.(C).No. 1708 of 2011 opportunity to produce Books of Accounts and other documents if any. 6. Fresh orders in this regard shall be issued as early as possible, at any rate within a period of one month from the date of receipt of a copy of this judgment. Sd/- C.K.ABDUL REHIM, Judge ami/ //True copy// P.A.to Judge