IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 7TH APRIL 2011 / 17TH CHAITHRA 1933 WP(C).No. 9053 of 2011(F) ----------------------------------- PETITIONER : - ---------------------- PAUL VARGHESE, PROP: PULLAN GRANTIES, NEDUNGAPRA PO, PERUMBAVOOR. BY ADVS. SRI.N. MURALEEDHARAN NAIR SMT.K.HYMAVATHY RESPONDENT : - ----------------------- THE COMMERCIAL TAX OFFICER, COMMERCIAL TAX OFFICE, 1st CIRCLE, PERUMBAVOOR - 683 542. BY GOVT. PLEADER SRI. V.K. SHAMSUDHEEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 9053 of 2011(F) APPENDIX PETITIONER'S EXHIBITS: EXT P1 : COPY OF THE NOTICE u/s. 25 (1) OF THE KVAT ACT FOR THE YEAR 2007 - 08 DATED 06.11.2010. EXT P2 : COPY OF THE ORDER PASSED BY RESPONDENT DATED FOR THE YEAR 2007 - 08 DATED 29.11.2010. EXT P3 : COPY OF THE DEMAND NOTICE IN FORM NO. 12 ISSUED BY RESPONDENT DATED 13.12.2010. RESPONDENT'S EXHIBITS: NIL. TRUE COPY P.A. TO JUDGE DMR/- C.K.ABDUL REHIM,J. ------------------------------- WP(C).NO. 9053 of 2011 --------------------------------- Dated this the 7th day of April, 2011 JUDGMENT Challenge in this writ petition is against Ext.P2 order of assessment finalised against the petitioner with respect to the year 2007-08, under section 25(1) of the Kerala Value Added Tax Act 2003 (KVAt Act) and the consequential demand raised under Ext.P3. Under normal circumstances this court may not be entertaining a writ petition filed challenging an order of assessment, in view of the effective alternative remedy of appeal provided under the statute. But the specific contention of the petitioner is that the assessment was finalised in violation of the mandatory procedure prescribed under section 25 of the KVAT Act and also in violation of principles of natural justice. It is specifically contended that the petitioner had submitted detailed reply to Ext.P1 pre- assessment notice issued proposing to finalise the assessment. But the assessing authority had discarded those objections in a unilateral manner without affording any opportunity of hearing to the petitioner. Hence the WP(C).9053/2011 2 order of assessment is unsustainable, is the contention. 2. On a perusal of Ext.P2 order it is evident that the petitioner submitted detailed reply to Ext.P1 notice. But the contentions raised relating to considerable portion of the turn over proposed, was seen rejected as not acceptable . It is not evident that any opportunity of personal hearing was afforded to the petitioner after submitting reply to the proposal notice. 3. Learned Government Pleader contended that in the proposal notice itself the petitioner was afforded with an opportunity to present his case with supporting documents at 11 a.m. on any intervening working days before the assessing authority. But it is pertinent to note that, the opportunity for personal hearing contemplated under section 25 is a specific opportunity to be afforded after the assessee submitting reply to the proposal notice. A composite notice calling for objection and personal hearing without specifying any date will not suiffice the requirement. In the decision of this court in Suzion Infrastructure Service Ltd. vs. C.T.O. (2010(3) KHC 299) it is held that the opportunity of personal hearing contemplated under section 25(1) is not an empty formality and that denial of WP(C).9053/2011 3 such opportunity will vitiate the order of assessment. 4. Under the above mentioned circumstances I am of the view that the impugned order of assessment suffers from non compliance of the mandatory procedure contemplated under section 25(1) and also suffers from violation of principles of natural justice. Hence the writ petition is allowed and Ext.P2 order and P3 consequential demand are hereby quashed. The 1st respondent is directed to finalise the assessment afresh, after affording a reasonable opportunity of hearing to the petitioner, on the basis of the objection submitted. Needless to say that the petitioner will be at liberty to produce records if any in support of his contentions. The matter shall be finalised at the earliest. At any rate fresh orders of assessment shall be issued within a period of one month from the date of receipt of a copy of this judgment. C.K.ABDUL REHIM,JUDGE pmn/ WP(C).9053/2011 4