IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 8TH MARCH 2011 / 17TH PHALGUNA 1932 WP(C).No. 5388 of 2011(W) ------------------------------------ PETITIONER : - ---------------------- M/S. MODERN FOOD INDUSTRIES (INDIA) LTD, (NOW UNIT OF HINDUSTAN UNILEVER LTD), EDAPPALLY, COCHIN - 24, REPRESENTED BY ITS SENIOR GENERAL MANAGER, SRI.K. RAVINDRAN NAIR. BY ADVS. SRI.ANIL D. NAIR SRI.J.R.PREM NAVAZ SMT.NIVEDITA A. KAMATH RESPONDENTS : - -------------------------- 1. THE ASSISTANT COMMISSIONER, SPECIAL CIRCLE - III, COMMERCIAL TAXES, ERNAKULAM. 2. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY (TAXES), SECRETARIAT, THIRUVANANTHAPURAM. R1 AND R2 BY Sr. GOVT. PLEADER SRI. C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 5388 of 2011(W) APPENDIX PETITIONER'S EXHIBITS: EXT P1 : COPY OF FORM NO. 17 DATED 18.08.2009 ISSUED TO THE PETITIONER BY THE FIRST RESPONDENT. EXT P2 : COPY OF THE LETTER DATED 08.09.2009 SUBMITTED BY THE PETITIONER TO THE FIRST RESPONDENT. EXT P3 : COPY OF THE NOTICE UNDER SECTION 25 OF THE KVAT ACT DATED 08.10.2010 ISSUED TO THE PETITIONER BY THE FIRST RESPONDENT. EXT P4 : COPY OF THE LETTER DATED 18.11.2010 SUBMITTED TO THE FIRST RESPONDENT BY THE PETITIONER. EXT P5 : COPY OF THE REPLY DATED 10.12.2010 SUBMITTED BY THE PETITIONER TO THE FIRST RESPONDENT. EXT P6 : COPY OF THE NOTICE DATED 12.01.2011 ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER. RESPONDENTS' EXHIBITS: NIL. TRUE COPY P.A. TO JUDGE DMR/- C.K.ABDUL REHIM,J. ------------------------------- WP(C).NO. 5388 of 2011 --------------------------------- Dated this the 8th day of March, 2011 JUDGMENT Ext.P6 order of assessment finalised under section 25(1) of the Kerala Value Added Tax Act 2003 (KVAT Act) for the year 2005-06 is under challenge in this writ petition. Under normal circumstances this court may not be inclined to entertain challenge against an order of assessment, in view of the effective alternative remedy of statutory appeal provided under the relevant provisions. But in the case at hand, the contention of the petitioner is that the impugned order of assessment is unsustainable in view of violation of the mandatory procedure contemplated under section 25 and also violation of the principles of natural justice. Specific contention is to the effect that, objection filed by the petitioner to the pre-assessment notice has been discarded without affording any opportunity of personal hearing to the petitioner as required under section 25. 2. On a perusal of the impugned order of assessment it is revealed that a notice containing the proposal for assessment WP(C).5388/2011 2 was communicated to the petitioner, calling for objections. The petitioner filed objections within the extended period of 29.9.2008, exactly on 25.9.2008. In the objection a specific request was made to afford a personal hearing. But the assessing authority had considered merits of the objections and finalised the assessment discarding the main contentions raised. With respect to personal hearing it is mentioned in the impugned order that, the authorised representative of the petitioner company was personally heard. But according to the petitioner, no hearing after the date of submission of the objection was conducted and in fact there was no personal hearing conducted on 25.9.2008, even at the time of submission of the objections. 3. Learned Government Pleader appearing on behalf of the respondents is not in a position to dispute the averments by furnishing any details with respect to the alleged personal hearing conducted on any date after submission of the objections with specific notice of hearing issued fixing any particular date for such hearing. The formality of personal hearing contemplated under section 25 of the KVAT Act is a post reply hearing, which need be afforded to the assessee after filing of the reply, on the WP(C).5388/2011 3 basis of the contentions raised therein. It is held by this court in Suzion Infrastructure Service Ltd. vs. C.T.O. (2010(3) KHC 299)that the personal hearing contemplated under section 25(1) is not an empty formality and that the non compliance of such formality will vitiate the order of assessment. In the case at hand, eventhough it is stated in the order that the authorised representative was heard, there is no evidence forthcoming with respect to any proper opportunity of personal hearing afforded after receipt of the reply. I am of the view that the impugned order of assessment is therefore unsustainable. 4. Under the above mentioned circumstances the writ petition is allowed and Ext.P6 order of assessment is hereby quashed. The 1st respondent is directed to consider the matter afresh and to finalise the assessment after affording an opportunity of personal hearing to the petitioner. Fresh orders in this regard shall be issued by the 1st respondent at the earliest possible, at any rate within a WP(C).5388/2011 4 period of one month from the date of receipt of a copy of this judgment. Needless to say that the petitioner shall be permitted to produce records if any, in support of the contentions raised. C.K.ABDUL REHIM,JUDGE pmn/ WP(C).5388/2011 5