IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 19TH MARCH 2008 / 29TH PHALGUNA 1929 WP(C).No. 8360 of 2008(T) ------------------------- PETITIONER: -------------- GAMMON INDIA LIMITED, GAMMON HOUSE, VEER SARVARKAR MARG, PRABHADEVI, MUMBAI 400 025. BY ADV. SRI.A.KUMAR RESPONDENTS: ----------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TAXES DEPARTMENT, GOVT.OF KERALA, GOVT. SECRETARIAT, TRIVANDRUM. 2. COMMERCIAL TAX OFFICER, (WC & LT), MATTANCHERRY, ERNAKULAM. 3. GREATER COCHIN DEVELOPMENT AUTHORITY, ERNAKULAM. 4. COCHIN BRIDGE INFRASTRUCTURE COMPANY LIMITED, NEW MATTANCHERRY BRIDGE, THOPPUMPADY, ERNAKULAM, KERALA. BY ADV. SRI.P.R.RAMACHANDRA MENON, SC,GCDA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/03/2008, THE COURT ON 19/03/2008 DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. =============== W.P.(C) NO. 8360 OF 2008 T ==================== Dated this the 19th day of March, 2008 J U D G M E N T The petitioner had entered into an agreement with the 1st respondent on 27/10/1999 for the construction of the Mattancherry Bridge on BOT basis. According to the petitioner, they had entered into Ext.P1 agreement dated 3.12.1999 with the 4th respondent, in which they were appointed as the EPC contractor and by supplementary agreement dated 6.1.2001, the 1st respondent had recognized the 4th respondent as the Concessionaire. 2. It is stated that rejecting their application for compounding, they were issued notice under section 17(3) and their assessment was completed for the assessment year 1999-2000 by order dated 3/3/2004. However, the said order was revised by orders of the Deputy Commissioner by order dated 20.12.2006 and Exts. P3 to P5 notices were issued proposing best judgment assessment for the assessment years 1999-2000, 2000-01 and 2001-02. Reply given by the petitioner are Exts. P6 and P7, but however, rejecting the contentions, assessment was completed by Exts. P8 to P10. In this writ petition, the challenge is only against Ext.P10 assessment order for the year 2001-02. WPC 8360/08 :2 : 3. The learned counsel submitted that tax could be levied only on goods and in this case it is levied on immovable properties and hence the levy is without jurisdiction. It was also argued that since the demand was barred by time, by virtue of Sec 17(6) and (7) of the Act. According to him on these contentions, a writ petition is maintainable against an order of assessment. Counsel also placed reliance on the judgments of the Supreme Court reported in Bharat Sanchar Nigam Ltd and another v. Union of India and others (2006(3) SCC 1) and J.M.Baxi & Co. Gujarat v. Commissioner of Customs, New Kandla and another (2001(9) SCC 275) and Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes), Ernakulam v. Bobby Rubber Industries (108(1997) STC 410). 4. In my view there is absolutely no justification for the petitioner not to avail of the statutory remedy of appeal. The rule of alternate remedy is not a bar in cases involving violation of principles of natural justice, acts without jurisdiction and in cases where vires of a statute is under challenge. In this case, though the petitioner has contended that the levy of tax by Ext.P10 is without jurisdiction, I cannot accept the said argument. In my view, it at best may be a case of an illegal levy and not WPC 8360/08 :3 : a case of levy without jurisdiction. 5. The petitioner could not succeed in showing any violation of principles of natural justice and in fact no attempt was made to canvass this point. Relying on J.M.Baxi & Co. Gujarat v. Commissioner of Customs, New Kandla and another (2001(9) SCC 275), petitioner contended that since the assessment is time barred the petitioner should not be relegated to pursue the alternate remedy of appeal. I have gone through the said judgment and in my understanding, that judgment does not lay down any general proposition that in all cases where a contention of time bar is raised, alternate remedy of appeal need not be pursued. On facts, it can be seen that in the above case the Apex Court was dealing with a case where demand was made after 16 years and as stated in para 3 thereof, relief was granted in the special facts of that case. Further, unlike that case, petitioner does not have to deposit the amount demanded for filing the appeal. On the other hand, the appellate authority is empowered to grant stay. For these reasons, I cannot accept this judgment as one supporting the contention of the petitioner. The other contentions raised are all on the merits, which, in my view, are to be canvassed before the appellate authority. WPC 8360/08 :4 : Therefore, leaving open all contentions, I dismiss this writ petition, without prejudice to the right of the petitioner to file statutory appeal. ANTONY DOMINIC,JUDGE. Rp