IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH FRIDAY, THE 20TH JUNE 2008 / 30TH JYAISHTA 1930 WP(C).No. 18571 of 2008(J) -------------------------- PETITIONER: ------------ M/S.ARVIND BRANDS LTD. CHITTOOR ROAD, ERNAKULAM, KOCHI-18, REP. BY P.SURESHKUMAR, AREA SALES MANAGER BY ADV. SRI.ARIKKAT VIJAYAN MENON SRI.HARISANKAR V. MENON SMT.MEERA V.MENON RESPONDENTS: ----------------------- 1. ASST.COMMISSIONER(ASSMT), COMMERCIAL TAXES SPECIAL CIRCLE-1 ERNAKULAM 2. DEPUTY COMISSIONER APPEALS, DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM BY GOVT. PLEADER SRI. C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - WP.(C) No. 18571 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of June, 2008 JUDGMENT Ext.P1 is an order of assessment passed against the petitioner under the best judgment assessment for the year 2004-2005. Petitioner preferred Ext.P2 appeal. By Ext.P3 judgment this court directed the appellate authority to take up the appeal out of turn and dispose of the same within two months from the date of deposit of the amount. It is while so, petitioner received Ext.P4 notice proposing to re-open the assessment under Section 19 of the General Sales Tax Act. Petitioner filed objection as Ext.P5. Essentially it is pointed out that the assessment order was under appeal and the appeal will be taken up within three weeks from the date of objection and asked for time. However, overruling the said objection Ext.P6 order was passed, by which the petitioner is assessed to pay balance sum of Rs.83,79,823/-. 2. I heard learned counsel for the petitioner Sri. Harisankar V. Menon and the learned Government Pleader. 3. Learned counsel for the petitioner submits that in this case the total and taxable turnover as shown in Ext.P6 is the one which is determined by Ext.P1 order. Ext.P1 is carried in appeal. The appeal is WPC. 18571/2008. 2 pending and going by Ext.P3 judgment the matter is to be disposed of out of turn. While so, the order passed under Section 19(1) of the Kerala General Sales Tax Act without considering the total and taxable turnover and merely referring to Ext.P1 order is not correct. He would also rely on the decision of this court reported in Importex International (P) Ltd. v. State of Kerala (1991(1) KLT 281), wherein this court held that the effect of re-opening is to vacate or set aside the initial order and substitute in its place the order made in the re-assessment. 4. Learned Government Pleader points out that though when there is re-opening of assessment under Section 19(1), the initial assessment order cannot survive, the initial order is referred to in Ext.P6 only to show the amount of the total turnover and taxable turnover. In other words, apparently the contention is that the figure arrived at by the assessing authority in Ext.P1 order is not sought to be re-opened as such. Re-opening was necessitated only on account of the penalty and it is this subsequent event which has led to the passing of Ext.P6 order, he contends. 5. I would think that the petitioner has an effective remedy by way of appeal against Ext.P6 order. Undoubtedly, going by the decision reported in Importex International (P) Ltd.'s case the original assessment WPC. 18571/2008. 3 order Ext.P1 cannot survive the passing of Ext.P6 and it is for the petitioner to raise all the contentions available to it against the findings in the order itself (Ext.P6) before the appellate authority. Without prejudice to the right of the petitioner to raise all the contentions and also to seek such interim relief, if he is so advised, the writ petition is disposed of. (K.M. JOSEPH, JUDGE) sb