IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH THURSDAY, THE 27TH NOVEMBER 2008 / 6TH AGRAHAYANA 1930 WP(C).No. 28854 of 2008(I) -------------------------------------------- PETITIONER(S): -----------=---------- ACCELERALED FREEZE DRYING CO.LTD., AMALGAM HOUSE, BIRSTOW ROAD, WILLINGDON ISLAND COCHIN 682003. BY ADV. SRI.C.K.KARUNAKARAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF FINANCE, GOVT. SECRETARIAT, THIRUVANANTHAPURAM-695001 2. ASSISTANT COMMISSIONER (AA) O/O OF THE ASST. COMMR. (AUDIT ASSESSMENT) COMMERCIAL TAXES, KALLUPALAM, ALLEPPY. BY GOVERNMENT PLEADER SHRI C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 28854 OF 2008 I -------------------------------------- Dated this the 27th November, 2008 JUDGMENT Petitioner challenges Ext.P4. Ext.P4 is an assessment completed on the petitioner pursuant to Ext.P1 notice dated 15.7.2008. There was an audit visit on 14.6.2007. Certain Books of Accounts and Records came to be scrutinized. Defects were noted and they are the defects which were the subject matter of Ext.P1 notice. It is the case of the petitioner that though Ext.P1 is dated 15.7.2008, it came to be served on 22.7.2008. Petitioner further contends that the petitioner has submitted Ext.P2 dated 24.7.2008. Therein, it is pointed out that the income tax assessment is in progress and the petitioner's Books of Accounts are with the Auditors and three weeks' time was requested for filing objections. It is also stated with reference to Ext.P1 notice that it is mentioned that branch transactions in four cases and inter-state sales were not supported with Form F and C Form. It is stated that as per the WPC.28854/08 I 2 records, they have submitted Form F for all the branch transactions. There is a request to specify the four branch transactions. Thereafter, according to petitioner, in the belief that time was granted, came to submit Ext.P3 dated 12.8.2008. However, Ext.P4 order was passed on 30.7.2008. 2. I heard the learned counsel for the petitioner and the learned Government Pleader. According to counsel for petitioner, having regard to the fact that Ext.P1 was received only on 22.7.2008, the Officer has acted illegally in issuing ext.P4 on 30.7.2008. He points out that the petitioner has submitted Ext.P3 dated 12.8.2008 and he also points out that in Ext.P4 order, Ext.P2 is virtually treated as its reply. Of course, I find that at the end of it, after referring to the reason that proceedings are pending under the Income Tax Act, the request for time was apparently not found justifiable and it is rejected. There is also reference to the aspect of C Form and F Form which I have already adverted to. 3. A Counter Affidavit is filed. Therein, it is, inter alia, WPC.28854/08 I 3 stated that there are only two points which were the subject matter of Ext.P1 for which the Books of Accounts were not necessary and, therefore, there is no basis. It is stated that Ext.P3 was filed after completion of the assessment order and before the retirement, the assessing authority completed the assessment for good and valid reasons. Reasonable opportunity was given. It is also stated that the time limit specified in the notice was seven days and it was served on the petitioner on 22.7.2008 and there was more than one week's time and it is further stated that there were two opportunities, namely at the time of inspection and also when the notice was issued. 4. Petitioner has filed a Reply Affidavit wherein, it is stated that the Certificate in Form 18B came to be served only along with Ext.P1 and its date of receipt is clearly mentioned in Ext.P5 produced along with the Reply Affidavit. It is also stated that in Ext.P2 the petitioner, besides seeking time and there was a request for some additional information with regard to the four branch transactions and no opportunity was afforded to the WPC.28854/08 I 4 petitioner before Ext.P4 order was passed. It is the case of the petitioner that no tax is due from the petitioner and the petitioner has been regularly paying tax. 5. Having heard the parties, I feel that this is a case where the order should be interfered with and an opportunity should be given to the second respondent to consider the objections in Ext.P3. Accordingly, Ext.P4 is quashed. The second respondent will consider Ext.P3 and in order that an order is passed at the earliest, petitioner or its representative will be present before the second respondent at 11 A.M. on 4.12.2008 and the Officer will proceed to take a decision in the matter in accordance with law, within a period of three weeks from 4.12.2008. The Writ Petition is disposed of as above. Sd/= K. M. JOSEPH, JUDGE kbk. // True Copy // PS to Judge