IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 24TH NOVEMBER 2009 / 3RD AGRAHAYANA 1931 WP(C).No. 31358 of 2009(L) -------------------------- PETITIONER(S): --------------- P.T.CHACKO, WORKS CONTRACTOR, SANTHA BHAVAN, KALANJOOR, PATHANAMTHITTA. BY ADV. SRI.VIJAYAN. K.U. SRI.K.N.SREEKUMAR RESPONDENT(S): --------------- 1. COMMERCIAL TAX OFFICER (WC & LT), O/O THE DEPUTY COMMISSIONER, COMMERCIAL TAXES, PATHANAMTHITTA. 2. STATE OF KERALA REPREENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM-695001. GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.31358 OF 2009 ------------------------------ Dated this the 24th day of November, 2009 J U D G M E N T ---------------------- 1. Petitioner is a civil contractor doing works mainly for PWD, Kerala Water Authority, Housing Board, etc:. He is a registered dealer borne on the files of the 1st respondent. Challenge in this writ petition is against Ext.P7 order of assessment issued with respect to the assessment year 2008-09. Petitioner is challenging the assessment without filing statutory appeal, inter alia contending that the impugned assessment is made in total violation of the procedure contemplated under Section 22 (3) and (4) read with Rule 22(5). According to the petitioner no proper notice as contemplated under Section 22 (3) and (4) read with Rule 22(5), in form 10(g) has been issued nor the petitioner was afforded with an opportunity to submit revised return. It is evident from Ext.P3 that before finalising the assessment a notice was issued to the petitioner pointing out the defects in the annual return and intimating the proposal to complete the assessment. In the said notice the petitioner is given opportunity to file written objections and to produce documentary evidence or to file revised return before 14.9.2009. W.P.(C).31358/09-L 2 Petitioner had produced Ext.P4 letter dt:22.9.2009 submitted before the 1st respondent seeking time upto 22.10.2009 for filing revised annual return. It is pointed out that the last date for filing form-13 and 13A for the year concerned is on 31.10.2009, as per Rule 60 of the KVAT Rules. But while accepting Ext.P4 letter the 1st respondent had noted in the local delivery book that the application could not be entertained on the ground that the petitioner has not filed audited statement for the previous year also. It is pointed out that the petitioner could not file revised return through E-filing system because, the system was not permitting such filing of revised return, after rejection of the annual return. However, according to the petitioner he had subsequently submitted Ext.P6 detailed reply. But Ext.P7 order was issued even prior to receipt of Ext.P6. It is further noticed that the petitioner had submitted a rectification application as evidenced by Ext.P8, before the 1st respondent. 2. Challenge against Ext.P7 assessment is mainly on the ground that there is procedural violation. As noticed above, the petitioner was given ample opportunity either to file revised return or to submit objections. According to the petitioner he was not in a position to submit full details or to file revised return, because audit was not completed. It is contended that, he need to file revised return only on completion of the audit. W.P.(C).31358/09-L 3 Petitioner had further contended that the rejection of the annual return is made beyond the time limit prescribed under Rule 35 of the KVAT Rules. 3. In a statement filed on behalf of the 1st respondent it is contended that the due date for filing return for the assessment year 2008-09 was on 30.4.2009. But the petitioner had filed annual return only on 27.8.2009, and the action was initiated through Ext.P3 notice dt:5.9.2009. Therefore it is well within the time limit prescribed under Rule 35. Going by the provisions of Rule 35 it could not be said that the annual return is rejected beyond the time limit prescribed therein, since it could not be construed that the time limit prescribed therein with respect to date of filing of the return for the next period is the date prescribed for filing next quarterly return. 4. Under the above circumstances without entering into merits of the contentions against the assessment, I am of the opinion that the matter need be agitated by the petitioner in a validly constituted appeal before the appropriate appellate authority. I do not find any reason to interfere with the assessment invoking the jurisdiction under Article 226. Therefore the petitioner is given liberty to file appeal untrammeled by any observations made as above. 5. It is further noticed that Ext.P8 application filed W.P.(C).31358/09-L 4 seeking rectification is pending consideration and disposal before the 1st respondent. The 1st respondent is directed to consider and pass appropriate orders on Ext.P8, after affording an opportunity of hearing to the petitioner, as early as possible, at any rate within a period of one month from the date of receipt of a copy of this judgment. The petitioner is given liberty to file appeal from the modified orders if any passed. 6. The respondents are directed to keep in abeyance steps for recovery of the amounts covered under Ext.P7 till orders are passed on Ext.P8 rectification application. C.K.ABDUL REHIM, JUDGE. okb