IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH TUESDAY, THE 11TH NOVEMBER 2008 / 20TH KARTHIKA 1930 WP(C).No. 27804 of 2008(I) -------------------------- PETITIONER(S): --------------- DOWLTHNISSA, CRECENT POLYPET, PERUVEMBA, PALAKKAD. BY ADV. SRI.R.SUDHAKARA MENON RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, FINANCE DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE OFFICER IN-CHARGE, THE FAST TRACK TEAM, COMMERCIAL TAXES DEPARTMENT, PALAKKAD. 3. THE COMMERCIAL TAX OFFICER, COMMERCIAL TAX OFFICE, II CIRCLE, PALAKKAD. 4. THE ASSISTANT SECRETARY, SALES TAX APPELLATE TRIBUNAL, ADDL. BENCH, PALAKKAD. GOVERNMENT PLEADER ADV.SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH, J. ```````````````````````````````````````````````````` W.P.(C) No. 27804 OF 2008 I ```````````````````````````````````````````````````` Dated this the 11th day of November, 2008 J U D G M E N T Petitioner challenges Exts.P4 and P8. A declaration is sought that section 17D of the Kerala Value Added Tax Act making it mandatory for paying the entire tax before filing appeal is null and void. A direction is sought not to collect the tax demanded and to admit Ext.P7 appeal before the STAT. Ext.P4 is the order of assessment by which the petitioner was assessed to tax under section 17D of the KGST Act for the assessment years 2001-02 and 2002-03. The petitioner had filed monthly and annual returns. According to the petitioner, petitioner is entitled to exemption. The petitioner has preferred appeal. But, it is pointed out that the petitioner has to pay the entire amount for maintaining the appeal under section 17D. The petitioner points out that as per the Circular, the respondents are obliged to issue pre- assessment notice. In this case, it has not been done and, therefore, the assessment is patently illegal. The petitioner is entitled to the benefit of exemption. A statement has been filed WPC.27804/08 : 2 : wherein there is no denial of non-issuance of pre-assessment notice. The books of accounts were verified and the returns were found acceptable in terms of turnover. It is stated that the claim of exemption was discussed with the petitioner and they were convinced regarding their liabilities to pay the tax and the return is accepted to the extent of turnover only. In the reply affidavit, it is, inter alia, stated that there was no discussion or consensus arrived at and no voluntary agreement to pay tax. There is no dispute that under the procedure for completing the assessment under section 17D if the officer does not complete the assessment in terms of the returns, he must issue a pre-assessment notice. Admittedly, that is not done in this case. The petitioner disputes the contention that there is any consensus. In view of the procedure prescribed in the Circular and having regard to the repercussions flowing from the order and also the burden of paying the entire amount of tax for maintaining the appeal against the order under section 17D, I am inclined to interfere with Ext.P4 and Ext.P4 is quashed. The 3rd respondent will issue a pre- assessment notice as required under the Circular and after WPC.27804/08 : 3 : considering any objections which may be filed, the assessment will be completed in accordance with law within six weeks from the date of receipt of a copy of this judgment. Writ petition is disposed of as above. (K.M.JOSEPH, JUDGE) aks