IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 16TH FEBRUARY 2011 / 27TH MAGHA 1932 WP(C).No. 1751 of 2011(T) --------------------- PETITIONER : -------------------- P.P.SULFIKER, PROPRIETOR, M/S.SANU AGENCIES, PEZHAKKAPPILLY, MUVATTUPUZHA. BY ADV. SRI. P.N. DAMODARAN NAMBOODIRI RESPONDENT(S): ------------------------- 1. THE COMMERCIAL TAX OFFICER, DEPARTMENT OF COMMERCIAL TAXES MUVATTUPUZHA-686 661. 2. INSPECTING ASST.COMMISSIONER, DEPARTMENT OF COMMERCIAL TAXES MUVATTUPUZHA-686 661. R1 & R2 BY GOVERNMENT PLEADER SRI. V.K. SHAMSUDHEEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.1751 of 2011 ------------------------------------------- Dated this the 16th day of February, 2011 J U D G M E N T ---------------------- Ext.P4 assessment completed with respect to the year 2008-09 under the provisions of the Kerala Value Added Tax Act, 2003 (KVAT Act) is under challenge in this writ petition. The assessment order is impugned without resorting to statutory remedy of appeal, on the ground that it is unsustainable in law in view of the fact that there is clear violation of the mandatory procedure contemplated under Section 25(1) as well as there is violation of principles of natural justice. 2. Contention of the petitioner is that he had filed objections to the proposal notice issued. But the assessing authority had rejected the objections and finalised the assessment, without affording any opportunity of hearing, which is a mandatory requirement under the relevant statute. 3. In a statement filed on behalf of the 1st respondent it is mentioned that consequent to the proposal notice issued, which was duly acknowledged by the petitioner on 2.12.2010, W.P.(C).1751/11 -2- the Manager of the petitioner appeared on 13.12.2010 and he was heard. It is also stated that he had submitted the contentions in writing, on that day. But the petitioner had filed a reply affidavit contending that the person who was allegedly heard is not a competent or authorised person and the allegation regarding such a hearing is refuted. 4. However, it is noticed that, even the averments in the statement is only to the effect that the Manager of the firm was heard on the date on which the objection was submitted. What is contemplated under Section 25(1) is that if the objections filed by the dealer is not acceptable to the assessing authority, he has to finalise the assessment after affording an opportunity of personal hearing. In a recent decision of this court in Suzion Infrastructure Service Ltd. Vs. C.T.O. (2010 (3) KHC 299) it is held that the personal hearing contemplated under Section 25(1) is not an empty formality and that any non compliance of such procedure will vitiate the assessment. Taking note of the dictum as stated above, I am of the view that there is no proper opportunity of hearing afforded to the dealer, after filing of the objections. Hence I am constrained to observe that the order in question is issued in a manner not fully complying with the procedure contemplated and also in violation of the principles of W.P.(C).1751/11 -3- natural justice. Therefore I am of the view that the matter requires reconsideration. 5. In the result the writ petition is allowed. Ext.P4 is hereby quashed. The 1St respondent is directed to finalise the matter afresh taking note of the objections submitted and after affording an opportunity of personal hearing to the petitioner. Needless to say that the petitioner shall be afforded with opportunity to produce documents or Books of Accounts in support of his contentions. Fresh order of assessment 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. C.K.ABDUL REHIM, JUDGE. okb