IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 21ST OCTOBER 2010 / 29TH ASWINA 1932 WP(C).No. 31261 of 2010(G) ---------------------------------------- PETITIONER(S): ----------------------- P.C.AJAYA KUMAR, KIRAN PLASTICS, INDUSTRIAL ESTATE, KALLIMEL P.O., MAVELIKKARA. BY ADV. SRI.VIJAYAN. K.U. SRI.K.N.SREEKUMAR RESPONDENT(S): --------------------------- 1. COMMERCIAL TAX OFFICER, COMMERCIAL TAX OFFICE, MAVELIKKARA.PIN- 690 101 2. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.PIN-695 001 R1 & R2 BY SENIOR GOVT PLEADER SRI.C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts C. K. ABDUL REHIM, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= W.P.(C) No. 31261 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 21st day of October, 2010 JUDGMENT Ext.P4 order of assessment completed against the petitioner under Section 25(1) of the Kerala Value Added Tax Act ( KUVAT Act) for various months during the year 2005-06 is the subject matter of challenge in this writ petition. 2. Main challenge raised against Ext.P4 is that, by the said order composite levy of Tax, Interest and Penalty was imposed which is a practice deprecated in various decisions. The levy of penalty as “ settlement fee at thrice the amount of interest” is totally beyond the scope of Section 25(1), is the further contention. According to the petitioner, the assessment was finalized without considering objections submitted by him to the proposal notice, as per Ext.P3. 3. It is admitted that before finalizing the assessment, proposal notice was issued as per Ext.P2, W.P.(C) No. 31261/2010 2 dated 2-8-2010. According to the petitioner, the proposal notice was received by him on 11-8-2010. It is stated that, on receipt of Ext.P2, the petitioner appeared before the 1st respondent in person and sought one week's time for filing objection, which the 1st respondent had consented to. Thereafter, the objections were sent through registered post to the 1st respondent on 9-9-2010, as revealed from the postal receipt attached to Ext.P3 objection. Case of the petitioner is that Ext.P4 order of assessment dated 31-8-2010 was despatched from the office of the 1st respondent only on 4-10-2010. Ext.P4(a) is the copy of the postal cover, which reveals that postal article was registered only on 4-10-2010. It is also noticed that demand notice sent along with Ext.P4 order of assessment is dated 30-9-2010 only. Contention is that the order in question can be treated only as one issued on 4-10-2010, even though it is pre-dated. 4. The petitioner is raising serious dispute regarding correctness of the rate at which the Tax was computed. He W.P.(C) No. 31261/2010 3 also dispute the imposition of penalty invoking the provisions for payment of settlement fee. According to the petitioner, the impugned order was issued without considering the contentions raised as above, in the objections filed. It is the contention that the issuance of Ext.P4, on a date nearly two weeks after receipt of the objections, without considering the same, is highly unsustainable. Under such circumstances the petitioner seeks to quash Ext.P4 and also seeks a direction for finalization of the assessment afresh, on the basis of the objections, after affording an opportunity of hearing. 5. Normally, this Court may not be inclined to entertain a challenge against an order of assessment, in view of the effective statutory remedy available by way of appeal. But in this case, on an appreciation of the factual aspects, I feel that there is merit in the contention of the petitioner that the objections raised against the proposal was available with the 1st respondent on the date on which the demand notice was issued and on the date on which the W.P.(C) No. 31261/2010 4 impugned order of assessment was actually signed and despatched. 6. Under such circumstances it will be only just and proper in the interest of justice to direct reconsideration of the matter, after giving proper opportunity to the petitioner to substantiate his contentions raised through Ext.P3 and also after affording an opportunity of hearing. 7. In the result, the writ petition is allowed. Ext.P4 order is hereby quashed. The 1st respondent is directed to consider Ext.P3 objections submitted by the petitioner and to pass fresh orders of assessment, after affording an opportunity of hearing to the petitioner and also an opportunity to produce documents if any, in support of his claims. Fresh orders of assessment shall be issued at the earliest possible, at any rate within a period of one month from the date of receipt of a copy of this judgment. C. K. ABDUL REHIM, JUDGE. mn.