IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931 WP(C).No. 8638 of 2009(Y) ------------------------------------ PETITIONER(S): --------------------- M/S. VARUN AGRO, VI/1036 A, SHAN COMPLEX, BAZAR ROAD, MATTANCHERY KOCHI 682 002, REPRESENTED BY THE PARTNER, KUSUM AJIT THAKER. BY ADV. SRI.C.K.THANU PILLAI RESPONDENT(S): ------------------------ 1. THE COMMISSIONER OF COMMERCIAL TAX, PUBLIC OFFICE BUILDINGS, THIRUVANANTHAPURAM 695 033 2. THE DEPUTY COMMISSIONER, COMMERCIAL TAXES, MATTANCHERY. 3. THE INTELLIGENCE OFFICER, SQUAD NO. II, COMMERCIAL TAXES, ERNAKULAM. 4. THE ASSISTANT COMMISSIONER, (ASSESSMENT), SPECIAL CIRCLE, PRODUCE, MATTANCHERY. BY GOVERNMENT PLEADER SRI.C.K.GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH, J. ------------------------------------------------------ W.P.(C) No. 8638 of 2009-Y ---------------------------------------------- Dated, this the 25th day of March, 2009 J U D G M E N T By consent of the learned counsel for the parties, the matter is taken up for hearing. 2. Petitioner challenges Ext.P11. Ext.P11 is a notice issued under Section 45(A) of the Kerala General Sales Tax Act, 1963. This case has a history behind. The matter had gone right up to the Commissioner. The Commissioner had remitted it back. A writ petition was filed challenging the same. It was disposed of directing that the officer will carry out the matter untrammelled by the observations contained in the order of the Commissioner. A writ appeal was filed and thereafter there was a review. It is thereafter that the impugned notice is issued. 3. I heard Sri.C.K.Thanu Pillai, learned counsel for the petitioner and learned Government Pleader. 4. The complaint raised against Ext.P11 notice is that it unambiguously betrays pre judging of the issue by the officer. It is apposite to extract the two penultimate WPC No. 8638/2009 -2- paragraphs of Ext.P11 notice. They read as follows: “You have filed a reply as cited in reference no.7 to this notice. In this reply you have contended that the cancellation noted in the original copy itself cover cancellation of bills and punching holes in the bills can't lead to any evasion of tax as assumed and clerk has made the punching. The “Entered” rubber seal is affixed as soon as bill is prepared and that too was made by the clerk. It has no other meaning and it can't be taken as delivery of goods to purchaser. Your explanation is not satisfactory and can't be acceptable. Sales bills can't be prepared and then cancelled as childishly as contended by you. Hence your objections and explanations are rejected. It is clear that you have not maintained true and complete accounts for your business for the year 1998-99 as required by Section 27 read with Rule 32 of the KGST Act and rules. So I hereby proposed to impose a penalty of Rs.1189800/- (Rupees Eleven lakhs eighty nine thousand eight hundred only) being the double amount of tax sought to be evaded by you U/s 45A of the Act.” 5. When notice is issued it may be open to the WPC No. 8638/2009 -3- authority to form a prima facie view in the matter. After notice is issued he must be prepared to disabuse himself of the earlier view formed upon receipt and consideration of explanation. Ext.P11 is styled as a notice both in the beginning and in the end. But, a perusal of the paragraphs which I have extracted would convey a clear-cut impression that the officer has already examined the explanation, and, he would, in fact, reject the same. After the same as the learned counsel for the petitioner rightly points out it may not be meaningful for him to go to the officer under the notice and attempt to persuade him to take a contrary view. I find considerable force in the complaint of the learned counsel for the petitioner. It is settled law that while notice should not ordinarily be interfered with in a writ proceeding, in a given case where notice discloses that the officer has already made up his mind, it would be a travesty of justice to allow proceedings to go on under such a notice. In such circumstances I am constrained to quash Ext.P11 without prejudice to fresh notice being issued. In the light of the fact that I am permitting a notice to be issued, this judgment WPC No. 8638/2009 -4- would be an exercise in futility and an empty formality if I would entrust the power of issuing notice to the very same officer. I quash Ext.P11 but with liberty to any other Intelligence Officer to take steps in conformity with the direction of the Commissioner, but as modified by this court in the judgment in the writ petition filed by the petitioner. I leave open the contentions of the petitioner. The writ petition is disposed of as above. (K.M.JOSEPH) JUDGE. MS