IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH FRIDAY, THE 17TH OCTOBER 2008 / 25TH ASWINA 1930 WP(C).No. 30401 of 2008(T) --------------------------------------------- PETITIONER: ------------------ M/S.BIO PHARMA, MAHESWARI MANSION, THAMARAKULAM, KOLLAM DISTRICT, REPRESENTED BY K.S.BABU KUMAR, MANAGING PARTNER. BY ADV. SRI.ARIKKAT VIJAYAN MENON SRI.HARISANKAR V. MENON RESPONDENT(S): ------------------------ 1. FAST TRACK ASSESSMENT TEAM - IV, DEPARTMENT OF COMMERCIAL TAXES, KOLLAM. 2. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SHRI C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 30401 OF 2008 -------------------------------------- Dated this the 17th October, 2008 JUDGMENT Petitioner is an assessee registered under the KGST Act. He came to be assessed vide Ext.P1. He carried the matter in Appeal, being aggrieved by the same. The Appellate Authority passed Ext.P2 order, modifying the assessment for the year 2001 - 2002. The matter came to be redone pursuant to Ext.P2, vide Ext.P3. The State carried the matter in Appeal against Ext.P2. The Tribunal allowed the Appeal and the matter was remitted back for de novo disposal. Thereafter, the petitioner made a request as Ext.P5 to give effect to the tribunal's order. However, petitioner came to be served with Ext.P6 notice under Section 17D of the KGST Act. Petitioner challenges Ext.P6. He also seeks a direction not to finalise the assessment under Section 17D and to transfer the file to the assessing authority under Section 17 of the Act. 2. I heard Shri Harisankar V. Menon, learned counsel WPC.30401/08 I 2 appearing for the petitioner and the learned Government Pleader. Learned counsel for petitioner points out that Section 17D has drastic consequences. If a person is aggrieved by the assessment, he can only file Appeal directly to the Appellate Tribunal and what is more, the Appeal should be accompanied with payment of the entire amount to make it maintainable. He points out that in this case, Section 17D is not applicable because this is a case relating to the year 2001 - 2002 and the assessment has already been completed and what has happened is that by Ext.P4 order, the Tribunal has remitted back the matter for redoing it and in such a case, Section 17D may not be applicable. I am much impressed by the said contention. Section 17D has been incorporated as a fast track method for completion of assessment by the Kerala Finance Act, 2007. It, inter alia, provides that notwithstanding anything contained in any other law or in the provisions of the KGST Act, assessments pending as on 1.4.2007 are to be completed under the fast track method. When the matter is remitted back, it cannot be said by WPC.30401/08 I 3 any stretch of imagination that the assessment for the year 2001 - 2002 is completed. On the other hand, it could be said that the assessment for the year 2001 - 2002 is pending. If that be so, it cannot be said that Section 17D is inapplicable for the reason that it is remitted back by the Tribunal under Ext.P4. Learned counsel for the petitioner further submits that under Section 17D (2)(e), the assessment is to be completed fairly by a summary proceeding. He further points out Circular No.17/07 datd 12.4.2007. Paragraph (1) of the instructions therein reads as follows: “1. Assessment under KGST Act for the assessment years up to and including 2004 - 05 shall hereafter be completed only under this method. However, cases classified as having revenue potential, cases involving pending crime files or enquiry files, or cases where protective assessment has been ordered to be taken, or cases where special investigations are in progress for these years will continue to be dealt with in the usual manner. However, files received from the intelliegence Wing or from the check posts without any offence shall be WPC.30401/08 I 4 disposed by the team as is being done by the assessing Officers at present.” 3. According to learned counsel for petitioner, this is an assessment which should be treated under the regular stream of assessment as there is revenue potential. He would submit that if things are as the assessing authority proposes to do, the liability will be in the region of nearly Rs.9 Lakhs towards tax apart from interest. He would, therefore, contend that Section 17D is not applicable. 4. I feel that Ext.P6 is only a notice issued purporting to proceed under Section 17D. The objection raised on the inapplicability of Section 17D on the basis of Circular which the petitioner relies on, is a matter which should be permitted to be taken up before the authority and it is for the authority to consider the same. Accordingly, the Writ Petition is disposed of as follows: Petitioner may file his objections to Ext.P6. Petitioner is permitted to raise the contention based on non-applicability of Section 17D having regard to the Circular, before the first WPC.30401/08 I 5 respondent, and the first respondent will consider the same and take a decision thereon in accordance with law. Sd/= K. M. JOSEPH, JUDGE kbk. // True Copy // PS to Judge