IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 3RD DECEMBER 2010 / 12TH AGRAHAYANA 1932 WP(C).No. 30482 of 2010(I) --------------------------------------- PETITIONER(S): ------------------------ M/S.DEEPTHY INSULATED CABLES PVT.LTD, II/437,CHEMICAL INDUSTRIAL ESTATE,AROOR ALAPPUZHA DISTRICT-PIN-688 534. REP.BY ITS MANAGING DIRECTOR JOSE THOMAS. BY ADV. SRI.G.HARIHARAN SRI.PRAVEEN.H. RESPONDENT(S): -------------------------- 1. DEPUTY COMMISSIONER(COMMERCIAL TAXES) FAST TRACK TEAM COMMERCIAL TAXES, ALAPPUZHA PIN-688 001 2. ASSISTANT COMMISSIONER (ASSESSMENT) COMMERCIAL TAX, ALAPPUZAH, PIN-688 001. R1 & R2 BY SENIOR GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts C.K.ABDUL REHIM, J ------------------------------ W.P.(C).NO. 30482 OF 2008 -------------------------------------------- Dated this the 3rd day of December, 2010 JUDGMENT Challenge in this writ petition is against Ext.P2 to P5 orders of assessments completed under Section 17D of the Kerala General Sales Tax (KGST) Act. The assessment pertains to the years 2003- 04 and 2004-05, both under KGST and CST Act. The petitioners are challenging the impugned orders on the basis that, the assessments were completed without providing any effective opportunity of hearing to the petitioner and that the pre-assessment notices were not served on them. It is pointed out that the assessments were finalize in violation of the mandatory procedure prescribed and the 2nd respondent has not complied with the statutory procedures for service of notice. According to the petitioner the assessments were finalize ex-parte without properly serving the proposal notices and without affording an opportunity to the petitioner to file objections. Further it is submitted that before finalizing the assessment, no opportunity of personal hearing was afforded. Hence the petitioner is challenging validity of the impugned assessment, in this writ petition, without resorting to the statutory remedy of appeal. W.P.(C).NO. 30482 OF 2008 2 2. On a perusal of the impugned orders of assessment, it is evident that the proposal notices were sent to the available address of the assesse. But it was returned unserved with endorsement as 'refused'. In a statement filed on behalf of second respondent it is mentioned that, in order to complete the assessment, notices were issued by the second respondent calling for production of books of accounts. But the petitioner has not responded for such notices. It is further mentioned that, subsequently notices under Section 17D was issued by the Fast Track Team in order to complete the assessment. But such notices were returned unserved with endorsement as 'refused' and therefore, the assessment were completed ex-parte. It is further stated that the copy of the assessment orders were served on the petitioner through their authorised representative on the strength of authorization letter dated 24-09-2010. It is stated that the contention of the petitioner regarding the non issuance of proposal notices is not correct. Since the petitioner had 'refused' to accept the notice, it will amount to a proper service is the contention. 3. In a reply affidavit filed by the petitioner, it is pointed out that the copy of the cover in which the proposal notices were send which is produced along with the statement filed by the second respondent, will W.P.(C).NO. 30482 OF 2008 3 indicate that the same was sent only in the name of the petitioner company to its address; registered Office, G245, Panampilli Nagar, Cochin-36. Contention of the petitioner is that the address of the petitioner is at Industrial Estate, Aroor in Alappuzha District and all notices hitherto issue by the Department were only in that address. Learned counsel appearing for the petitioner had drawn my attention to Ext.P2 to P5 orders, in which it is evident that the address of the petitioner is shown as Industrial Estate, Aroor. Hence it is clear that the alleged notices were send not in the usual address of the petitioner company which is available with the assessing authority. 4. Learned Government Pleader, on the basis of instruction, submitted that the address at Panampilli Nagar, Cochin-36 is that of one of the Directors of the company and the said Director had refused to accept the registered notices issue. However, it is the specific contention of the petitioner that the company is not having any registered office at such address. 5. It is also noticed that the impugned order of assessment does not reflect any notice of hearing issued to the petitioner. There is no evidence to the effect that any notice was published, notifying the date and place of hearing where the Fast Track Team is conducting sitting. W.P.(C).NO. 30482 OF 2008 4 6. Going by the decision of this Court reported in 2009 (4) KHC 819 (Hindustan Petroleum Corporation v Asst. Commissioner, Commercial Taxes, Ernakulam). It is mandatory on the part of the Fast Track Team to afford an opportunity of hearing by publishing notice indicating the time and place of hearing. Going by the relevant Rules under the Kerala Value Added Tax Rules, it is evident that the authority has not affected service of the notices of proposal for assessment in the manner prescribed. 7. However, it is evident that the petitioner had no effective opportunity to object proposal for the assessment. Nor they were afforded with any opportunity to appear before the authority which finalized the assessment. Under such circumstances, it is only just and proper to afford the petitioner a further opportunity before finalizing the assessment. In the result, the Writ Petition is allowed and Ext.P2 to P5 orders are hereby quashed. The respondents are directed to issue proposal notices with respect to the assessment, within a period of two weeks from the date of receipt of a copy of this judgment. The notice can be send by the authority concerned in the address of the petitioner mentioned in this judgment. The petitioner shall be afforded with a W.P.(C).NO. 30482 OF 2008 5 reasonable opportunity to file objections after service of the notice. The assessment shall be finalized either under Section 17(3) or under Section 17 D of the KGST Act, after affording a reasonable opportunity to hearing this matter. C.K.ABDUL REHIM,JUDGE pm