IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 9TH SEPTEMBER 2009 / 18TH BHADRA 1931 WP(C).No. 25534 of 2009(J) -------------------------- PETITIONER(S): --------------- M/S.MALABAR OXYGEN CO. (DISCONTINUED) CHELARI, THENHIPALAM, MALAPPURAM DISTRICT REP. BY ITS PARTNER, SHRI.K.ARAMUGHAN. BY ADV. SRI.T.M.SREEDHARAN SMT.C.K.SHERIN SRI.V.P.NARAYANAN RESPONDENT(S): --------------- 1. THE COMMERCIAL TAX OFFICER, THE FAST TRACK TEAM - 1, COMMERCIAL TAX OFFICE, VAT CIRCLE, TIRURANGADI, MALAPPURAM DISTRICT. 2. THE ASSISTANT SECRETARY, KERALA SALES TAX APPELLATE TRIBUNAL, ADDITIONAL BENCH, PALAKKAD. 3. THE DEPUTY TAHSILDAR, (REVENUE RECOVERY), TIRURANGADI. 4. THE STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K. ABDUL REHIM, J. --------------------------------- WP(C) NO. 25534 OF 2009 ----------------------------------- Dated this the 9th day of September, 2009 J U D G M E N T Aggrieved by Ext.P1 and P2 assessments issued under the provisions of Section 17D of the Kerala General Sales Tax Act, with respect to the years 2003-04 and 2004-05, the petitioner had filed Ext.P3 and P4 appeals before the second respondent. But the appeals were not entertained since payment of the tax in dispute was not effected, as provided under Section 17 D(5) of the Act. But the petitioner is challenging the sustainability of Ext.P1 and P2 orders in this Writ Petition on the ground that those orders are illegal, having issued by a team consisting of only three members, where as it is mandatory under the provisions of Section 17 D that the assessment shall be issued only by a team consisting of four members. It is pointed out that, with respect to an identical assessment order pertaining to the previous year of 2002-03, the petitioner had approached this Court and this Court had set aside the assessment as evidenced by Ext.P9 judgment, on the very same ground. 2. Under the above circumstances, Ext.P1 and P2 are held as not sustainable and hence they are liable to be set aside. Therefore the WPC NO.25534/2009 2 Writ Petition is allowed quashing Ext.P1 and P2 assessments. The assessing authority is directed to consider the matter afresh and to pass appropriate orders after giving opportunity of hearing to the petitioner, in compliance with the provisions under Section 17D. Such orders may pass as early as possible, at any rate, within two months from the date of receipt of a copy of this judgment. It goes without saying that the respondent could not take any action for recovery till fresh orders are issued, since the assessment orders stands set aside. C.K. ABDUL REHIM JUDGE dnc