IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR THURSDAY, THE 12TH JULY 2007 / 21ST ASHADHA 1929 WP(C).No. 21510 of 2007(I) -------------------------- PETITIONER: ------------ C.RAGHAVAN, S/O.LATE: KUMARAN NAIR, GOKULAM, KANNAMPUZHA TEMPLE ROAD, CHALAKUDY SOUTH, CHALAKUDY (P.O), THRISSUR DISTRICT. BY ADV. SRI.C.K.ABDUL RAHIM SRI.M.MATHEW JOSEPH SMT.K.ANILA RESPONDENTS: ------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMERCIAL TAX OFFICER (W.C. & LT) O/O DEPUTY COMMISSIONER, DEPARTMENT OF COMMERCIAL TAXES, THRISSUR, PIN - 680004. 3. THE INSPECTING ASSISTANT COMMISSIONER, DEPARTMENT OF COMMERCIAL TAXES, MINI CIVIL STATION, IRINJALAKUDA, PIN - 682 0125. BY G.P. SRI. C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/07/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR,J. -------------------------------------------- W.P.C. NO. 21510 OF 2007 -------------------------------------------- Dated this the 12th day of July, 2007 JUDGMENT Petitioner is challenging sales tax assessments issued for 2002-03 to 2004-05 produced as Exts. P7 series on the ground that those orders are passed without issuing pre-assessment notice. It is seen from the assessment order for 2002-03 that Officer himself has stated that petitioner has furnished Form No. 21C. However, no tax is seen credited in the assessment order. Form No.21C itself is proof of remittance of tax by the Awarder after deducting from the petitioner's bills. It is strange that Officer has passed assessment orders without issuing pre-assessment notice under Section 17(3) which is a mandatory provision of the KGST Act. Assessment can be completed without issuing pre-assessment notice only if it is done strictly in terms of the return and not when there is deviation from the same. In other words, if there is any proposal to assess turnover different from declared turnover, disallowance of exemption claimed on any part of turnover or even proposal of short credit of tax payment claimed, the Officer should issue pre-assessment notice and then complete the 2 assessment after hearing the assessee. The Officer should have verified copies of contracts pertaining to the works executed by the petitioner and seen whether deductions are properly made. The assessments are therefore patently illegal and unsustainable. Petitioner has also filed applications for rectification vide Ext.P8 series. In the circumstances, W.P. is disposed of directing the second respondent to go through the rectification applications, returns and other documents produced by the petitioner, such as Form No. 21C, copies of contracts, etc. and revise assessment in rectification proceedings after issuing pre-assessment notice to the petitioner and after giving an opportunity of hearing to the petitioner. Revised assessments modifying the orders already issued should be completed within two months from now. Petitioner will produce a copy of this judgment before the second respondent and co- operate with him for completion of assessments within the time frame stated above. There will be direction to respondents to withhold recovery proceedings for two months from now and thereafter recovery will be based on rectified orders to be issued by the Officer as above. Issue photocopy today itself. (C.N.RAMACHANDRAN NAIR) Judge 3