IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 10TH JANUARY 2011 / 20TH POUSHA 1932 WP(C).No. 36127 of 2010(M) -------------------------- PETITIONER: ------------------ M/S.NJAVALLIL LATEX (P) LTD., BINANIPURAM, ALWAYE, ERNAKULAM DISTRICT, REPRESENTED BY ANTONY KURIAN, MANAGING DIRECTOR. BY ADVS. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON RESPONDENTS: --------------------- 1. ASST.COMMISSIONER, VAT SPECIAL CIRCLE (PRODUCE), MATTANCHERRY, KOCHI - 2. 2. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM BY SENIOR GOVERNMENT PLEADER, SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.36127 of 2010-M ---------------------------------------- Dated this the 10th day of January, 2011. J U D G M E N T Exts.P12 and P13 orders of assessment finalised under Section 25(1) of the Kerala Value Added Tax Act (KVAT Act) as well as under the provisions of the Central Sales Tax Act (CST Act), is under challenge in this writ petition. 2. On an earlier occasion, Ext.P1 notice was issued proposing to reject the claims of the petitioner and to complete a best judgment assessment, taking note of the fact that the petitioner had failed to produce required 'C' Forms with respect to claim for concessional rate of tax relating to the interstate sales. The petitioner submitted Ext.P2 reply in this regard. Thereafter on the basis of notice issued, the petitioner had produced books of accounts for verification. Subsequently, fresh proposals as per Exts.P5 and P6 were issued for finalising the assessment under the KVAT Act and CST Act respectively. W.P(C) No.36127 of 2010-M 2 On receipt of Exts.P5 and P6, the petitioner submitted Ext.P7 request seeking one weeks' time to file objections. But through Ext.P8 such request was declined stating that, as there is no significant changes in the revised notices, there is no justification in granting time. However, it is stated that the petitioner had submitted objection to the proposals, as evidenced from Exts.P9 and P10. 3. According to the petitioner the objections were served in the office of the 1st respondent on 6.11.2010, as evidenced from the relevant entry in the local delivery book, copy of which is produced as Ext.P11. But the 1st respondent had finalised the assessment on 30.10.2010, as noticed in Exts.P12 and P13. Contention of the petitioner is that the dates noted on the impugned orders are not correct and that the 1st respondent had issued those orders pre- dated, in order to defeat the interest of the petitioner. It is pointed out that the demand notices issued along with Exts.P12 and P13 are only dated 12.11.2010, and from that fact itself it is evident that the 1st respondent had signed the W.P(C) No.36127 of 2010-M 3 impugned assessments only on 12.11.2010. It is contended that at the time when the impugned orders were despatched from the office of the 1st respondent, the objections submitted (Ext.P9 and P10) were available. But the 1st respondent had ignored those objections and had omitted to take note of the contents thereof. 4. Further contention raised by the petitioner is that no opportunity of hearing was afforded before finalising the assessment, which is a pre-requisite going by the provision contained under Section 25(1) of the KVAT Act as held by this Court in Suzion Infrastructure Service Ltd. V. Commercial Tax Officer (W.C), Ernakulam (2010(3) KHC 299 (Ker ). 5. Arguments were advanced to substantiate the legal proposition that any assessment will become complete and effective only when the order is issued and only when such order is left beyond the control of the authority it can be stated as 'issued'. In other words, the mere making and signing of assessment order is not determinative of its effect W.P(C) No.36127 of 2010-M 4 and only when it was put to the party, the said order will become operative. In order to support the above legal proposition the petitioner relies on various decisions like Government Wood Works V. State of Kerala (1988) 69 STC 62, Agricultural Income Tax V. Kappumalai Estate (1999) 7 KTR 377, Commissioner of Agriculatural Income Tax V. M.S.K.S. Radhakrishnan (1999) 7 KTR 410 and M/s.Jiffri & Kareem V. Agricultural Income Tax Officer (1999) 7 KTR 628 etc. 6. Considering the facts and circumstances it is evident from Ext.P1 that, the objections submitted by the petitioner against the proposals (Exts.P9 and P10) were served in the office of the 1st respondent on 6.11.2010. It is further evident that Exts.P12 and P13 orders were despatched from the office of the 1st respondent only after 12.11.2010 ie: the date on which the 1st respondent had put his signature on the accompanying demand notices. It is also evident that the petitioner was not afforded with an opportunity of hearing before finalising the assessment. W.P(C) No.36127 of 2010-M 5 Under such circumstances, I am of the view that the petitioner was prevented from raising effective contentions against the proposals. Therefore, I am inclined to set aside the impugned assessments and to direct the 1st respondent to finalise the same afresh, taking into consideration of the objections submitted. 7. In the result, the writ petition is allowed. Exts.P12 and P13 orders of assessments are hereby quashed. The 1st respondent is directed to finalise the matter afresh, taking note of the objections submitted by the petitioner under Exts.P9 and P10 and after affording an opportunity of personal hearing to the petitioner. 8. The needful in this regard shall be done as early as possible, at any rate within a period of one month from the date of receipt of a copy of this judgment. Sd/- C.K.ABDUL REHIM JUDGE //True Copy// ab P.A to Judge W.P(C) No.36127 of 2010-M 6