IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 14TH MARCH 2011 / 23RD PHALGUNA 1932 WP(C).No. 3981 of 2011() ------------------------ PETITIONER(S): --------------- M/S.DAEHSAN TRADING (INDIA) PVT. LTD., 41/3957-A, PROVIDENCE JUNCTION, OLD RAILWAY STATION ROAD, COCHIN-18, REPRESENTED BY ITS BRANCH MANAGER SRI.V.G.NARAYANAN NAIR. BY ADV. SRI.ANIL D. NAIR SRI.J.R.PREM NAVAZ SMT.NIVEDITA A.KAMATH RESPONDENT(S): --------------- 1. THE ASSISTANT COMMISSIONER (ASSESSMENT), SPECIAL CIRCLE II, ERNAKULAM – 682 018. 2. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY (TAXES), SECRETARIAT, THIRUVANANTHAPURAM – 695 001. BY SR. GOVERNMENT PLEADER C.K.GOVINDAN FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.3981 of 2011-W ---------------------------------------- Dated this the 14th day of March, 2011. J U D G M E N T Challenge in this writ petition is against Ext.P5 order of assessment completed under Section 25(1) of the Kerala Value Added Tax Act (KVAT Act) with respect to the year 2008-09. The order of assessment is challenged without filing statutory appeal on the basis of an allegation that the assessment was completed in violation of mandatory procedure prescribed, since no effective opportunity of hearing was afforded after filing of objections to the proposal notices. 2. In the statement filed on behalf of the 1st respondent it is mentioned that the petitioner had filed reply to the proposal notice on 15.2.2010 and subsequently a notice was issued directing to produce evidence in support of the reply, on 18.2.2010. The petitioner was directed to produce documents in connection with alleged membership fee and the kits supplied as part of multi level marketing. In the notice issued in this regard dt.11.11.2010, the petitioner was given an opportunity of personal hearing on 30.11.2010. But only on 14.12.2010, the W.P(C) No.3981 of 2011-W 2 petitioner filed reply. Further the petitioner was issued with a notice calling for production of records ie; purchase bills, sales bills etc. It is stated that on 13.1.2011 the records were produced and a hearing was conducted on that date. It is stated that the person, who had produced records, had specifically explained the modus operandi of the company in adopting the market methods and he had also explained about the different items dealt with and its usages. Under such circumstances, contention of the respondent is that an effective opportunity of hearing was already provided. 3. Considering the facts and circumstances as stated above, I am of the view that, the petitioner could not be permitted to assail the order of assessment in this writ petition, without resorting to the remedy of appeal. Confronted with the above situation, learned counsel for the petitioner sought indulgence of this Court in permitting the petitioner to approach the appellate authority by filing statutory appeal against Ext.P5. I am of the view that since the petitioner was prosecuting the issue before this Court, he can be permitted to approach the appellate authority within a short time. W.P(C) No.3981 of 2011-W 3 4. Accordingly, the writ petition is disposed of directing the petitioner to file statutory appeal against Ext.P5 within two weeks from the date of receipt of a copy of this judgment. If the petitioner files any validly constituted appeal before the appellate authority within the time as stipulated above, the said authority shall consider the appeal as one filed within the time limit prescribed and shall proceed to dispose of the same on merits. It is left open to the petitioner to seek appropriate interim relief from the appellate authority. 5. However, in order to facilitate the petitioner to approach the appellate authority and to seek appropriate remedies, recovery of amounts covered under Ext.P5 shall be kept in abeyance for a period of three months from today. C.K.ABDUL REHIM JUDGE ab