IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 4TH AUGUST 2011 / 13TH SRAVANA 1933 WP(C).No. 32707 of 2010(K) -------------------------------------- PETITIONER: ------------------- M.O.SHABU, PROPRIETOR, MARBLE WORLD, MALPAN HOUSE, ELANJIPARA P.O., CHALAKKUDY, TRICHUR DISTRICT. BY DR.K.B.MUHAMED KUTTY, SENIOR ADVOCATE, ADVS. SMT.SHAJNA FIROZ, SRI.K.M.FIROZ. RESPONDENTS: ------------------------ 1. THE FAST TRACK TEAM NO.1, TRICHUR, OFFICE OF THE INSPECTING ASSISTANT COMMISSIONER, IRINJALAKUDA – 680 308. 2. THE COMMERCIAL TAX OFFICER, CHALAKUDY, TRICHUR DISTRICT-680 307. 3. THE INSPECTING ASSISTANT, COMMISSIONER, IRINJALAKUDA, TRICHUR DISTRICT – 680 308. R1 TO R3 BY GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/11//2010, THE COURT ON 04/08/2011 DELIVERED THE FOLLOWING: W.P.(C). NO.32707/2010-K: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE NOTICE DTD. 26/05/2010 ISSUED BY THE R.2. EXT.P.2: COPY OF THE PRE-ASSESSMENT AND HEARING NOTICE DTD. 03/07/2010 FOR THE YEAR 2003-04 ISSUED ON BEHALF OF THE R.1. EXT.P.3: COPY OF THE PRE-ASSESSMENT AND HEARING NOTICE DTD. 03/07/2010 FOR THE YEAR 2004-05 ISSUED ON BEHALF OF THE R.1. EXT.P.4: COPY OF THE POSTAL COVER IN WHICH EXT.P.2. AND P3. NOTICES WERE RECEIVED. EXT.P.5: COPY OF THE MEDICAL CERTIFICATE ISSUED FROM ST. JAMES HOSPITAL, CHALAKUDY, TRICHUR TO PROVE THE FACT THAT PETITIONER'S WIFE LEEMA SHABU WAS HOSPITALISED FROM 05/08/2010. EXT.P.6: COPY OF THE EXPARTE ASSESSMENT ORDER DTD. 02/09/2010 UNDER SECTION 17 D OF THE KGST ACT FOR THE YEAR 2003-04. EXT.P.7: COPY OF THE EXPARTE ASSESSMENT ORDER DTD. 02/09/2010 UNDER SECTION 17 D OF THE KGST ACT FOT THE YEAR 2004-05. EXT.P.8: COPY OF THE DEMAND NOTICES IN FORM NO.13 AND 24 DTD. 03/09/2010 FOR THE YEAR 2003-04. EXT.P.9: COPY OF THE DEMAND NOTICES IN FORM NO.13 AND 24 DTD. 03/09/2010 FOR THE YEAR 2004-05. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. C.K.ABDUL REHIM, J. ------------------------------- W.P.(C) No.32707 of 2010 ------------------------------- Dated this the 4th day of August, 2011. J U D G M E N T Petitioner is challenging Exts.P6 and P7 orders of assessment and the consequential demands raised under Exts.P8 and P9. Exts.P7 and P8 assessments were completed by the 1st respondent resorting to procedure contemplated under Section 17 D of the Kerala General Sales Tax Act, 1965 (KGST Act). The petitioner is assailing those orders on the ground that, the mandatory procedure prescribed under the relevant provision as enumerated by this Court in Hindustan Petroleum Corporation Ltd. Vs. Assistant Commissioner (2009(4) KHC 819 [DB]) has not been complied with. 2. It is the specific case of the petitioner that, no hearing was conducted as contemplated under Section 17D (2)(g), by publishing information regarding such hearing through any media. It is contended that pre-assessment 2 W.P.(C) No.32707 of 2010 notices intimating the date of personal hearing issued to the petitioner was received by him only on 5.8.2010, whereas the date fixed for hearing was on 9.7.2010. The petitioner points out that, in the decisions cited supra this court specifically observed that the information regarding the venue and date of hearing under Section 17D(2)(g) should be published in local media, after issuing notice in advance to the dealers concerned. 3. In the case at hand, the assessments originally finalised were set asided by this Court through judgment in W.P.(C) No.792 of 2010, dated 11.1.2010. Thereafter, books of account were called for verification. Eventhough the petitioner appeared before the office of the 2nd respondent on the date fixed, the 2nd respondent was absent. The petitioner did not received any further notice intimating the date fixed for production of the books of accounts or for hearing. Later pre-assessment notices as per Exts.P2 and P3 were issued with proposal to restore the original assessment. The notices provided opportunity of 3 W.P.(C) No.32707 of 2010 personal hearing, on 9.7.2010. As stated above, the notices were received by the petitioner only on 5.8.2010. But without affording any further opportunity to the petitioner, the impugned assessments were finalised. Therefore, it is contended that the assessments finalised in violation of the procedure contemplated under Section 17 D is unsustainable. 4. On a perusal of Exts.P6 and P7 orders it is revealed that, the receipt of the notices by the petitioner on 5.8.2010 is admitted. But the original assessment was restored stating that the petitioner had failed to file any objections. But as observed above, it is evident from Exts.P2 and P3 that the opportunity for hearing was afforded at 11 A.M. on 9.7.2010. Since those notices were received only on 5.8.2010, it can be concluded that the petitioner was not aware about posting of the hearing. From Exts.P6 and P7 it is not revealed that any further opportunity was afforded. 5. In the counter affidavit filed on behalf of respondents it is contended that, inspite of calling for 4 W.P.(C) No.32707 of 2010 production of books of accounts, the petitioner had failed to produce the same. It is also contended that even after receipt of the pre-assessment notices, the petitioner had neither appeared nor filed any objections, before 2.9.2010. Hence the assessment was finalised restoring the original order, is the contention. 6. Section 17 D prescribe a comprehensive procedure for finalisation of assessment in a 'Fast Track' method. Procedure contemplated therein stipulates, steps to be taken at each and every stage for completing the process of assessment. Hearing contemplated under Section 17D(2) (g) is also a mandatory procedure to be complied with. Going by the facts and circumstances as narrated above, I could not conclude that there is proper compliance of the procedure stipulated under Sub Section 2(g). Therefore, inspite of the contention that there was failure on the part of the petitioner to file objections to the proposal notice, I am of the view that the impugned orders will not withstand the test of legal sustainability. As it is also expedient in the 5 W.P.(C) No.32707 of 2010 interest of justice to afford an opportunity to the petitioner to raise objections and to adduce evidence against the proposal notices, I am inclined to set aside the assessments. 7. In the result, the writ petition is allowed and Exts.P6 and P7 orders are hereby set aside. The petitioner is directed to file objections to the proposal notices (Exts.P2 and P3) within two weeks from the date of receipt of a copy of this judgment. The respondents are directed to complete the assessments afresh, taking note of such objections if any submitted and to finalise the assessment afresh after affording an opportunity of personal hearing to the petitioner, either by resorting to Section 17(3) or by resorting to Section 17 D of the Kerala General Sales Tax Act (Kerala General Sales Tax Act, 1963 (KGST Act) Act). C.K.ABDUL REHIM, JUDGE ami/