IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 28TH OCTOBER 2010 / 6TH KARTHIKA 1932 WP(C).No. 29347 of 2010(P) -------------------------- PETITIONER(S): --------------- M/S.MEHNAZ ASSOCIATES, 39/909, FIRST FLOOR, SOUTH SQUARE BUILDING, PANAMPILLY NAGAR, COCHIN-682 036, ERNAKULAM DISTRICT, REPRESENTED BY ITS MANAGING PARTNER SRI.J.NOOR MOHAMED SAIT. BY ADV. SRI.TOMSON T.EMMANUEL RESPONDENT(S): --------------- 1. THE COMMERCIAL TAX OFFICER, COMMERCIAL TAXES, IVTH CIRCLE, ERNAKULAM-682 018. 2. THE INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, KAKKANAD-682 030. SENIOR GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K. ABDUL REHIM, J ------------------------------- WP(C) NO. 29347 OF 2010 ------------------------------------- Dated this the 28th day of October, 2010 JUDGMENT Ext.P7 order of assessment issued under Section 25 (1) of the Kerala Value Added Tax Act, 2003 (KVAT Act) is under challenge in this Writ Petition. Apart from the contentions on merits, it is stated that before finalizing the assessment Ext.P5 notice was issued intimating the proposal and calling for objections. The said notice was served on the petitioner on 05.05.2010. In Ext.P5 only three days’ time within receipt of that notice was provided for submitting objections. Further, through the very same notice an opportunity of personal hearing was provided on 17.05.2010. 2. According to the petitioner on receipt of Ext.P5 he submitted Ext.P6 request seeking further extension of time for filing detailed reply, on the basis that, the matter has already been entrusted with the tax consultant and it require some more time to go through the books of 2 WP(C) No. 29347/2010 accounts and to file proper reply to the proposal notice. According to the petitioner, without considering such request, the assessment was finalized. Under the above premises, Ext.P7 is challenged without filing appeal, on the ground that the assessment was finalized without complying with the mandatory procedures contemplated under Section 25 and in violation of principles of natural justice. 3. In a statement filed on behalf of the first respondent it is mentioned that Ext.P5 notice was served on the petitioner only on 05.05.2010. According to the first respondent an opportunity of hearing was afforded on 17.05.2010, i.e., after 12 days of receipt of the notice. But it is stated that the petitioner had not chosen to file any reply, nor to appear for a personal hearing. It is also mentioned that the petitioner has not applied for any extension of time. 4. In the reply affidavit filed by the petitioner it is specifically averred that Ext.P6 request seeking time for filing objection was submitted at the office of the first 3 WP(C) No. 29347/2010 respondent on 10.05.2010 and it was acknowledged in the local delivery book, on that day itself by affixing seal of the office of the first respondent. Ext.P9 copy of the extract of local delivery books is produced in support of the above claim. On a perusal of Ext.P9 it is revealed that the description of the document received is seen written as “letter from M/s. Mehnaz Enterprizes for the assessment year 2008-09 for extension of time”. Initial put on Ext.P9 indicate that the letter was received on 10.05.2010 and there is affixture of office seal of the first respondent. 5. On a perusal of Ext.P7, the observations contained therein is as follows: “The notice was served on the dealer on 05.05.2010 and objections invited. They were also afforded a personal hearing in the matter. But so far the dealer has not appeared before me or filed any reply. Hence it is presumed that the dealer has not objections to offer and the assessment is completed as proposed as under” From the facts stated above, it is evident that the petitioner was issued with a proposal notice on 05.05.2010. 4 WP(C) No. 29347/2010 It is further evident that Ext.P6 request was seen acknowledged at the office of the first respondent on 10.05.2010. It is also pertinent to note that as per Ext.P5, a composite notice was issued calling for objection as well as for opportunity for personal hearing. Considering overall circumstances it is evident that the petitioner was prevented from filing an objection against the proposal and there was no occasion of affording any opportunity of personal hearing. Eventhough the first respondent denies receipt of Ext.P6, there is substantial evidence to show that the petitioner had submitted Ext.P6 at the office of the first respondent on 10.05.2010. 6. Under the above circumstances, I am of the considered opinion that the matter needs reconsideration by the respondents and the assessment need be finalized afresh, after affording an effective opportunity to the petitioner to file objections and for a personal hearing. 7. Under the above circumstances, the Writ Petition 5 WP(C) No. 29347/2010 is allowed and Ext.P7 order of assessment is hereby quashed. The petitioner is directed to file objections against Ext.P5, within a period of two weeks from today. If any such objection is received within the time stipulated, the first respondent shall provide an opportunity for personal hearing to the petitioner and will permit the petitioner to produce books of accounts and other documents in support of their contentions. Fresh order of assessment shall be issued in this regard at the earliest possible at any rate within a period of six weeks from the date of receipt of a copy of this judgment. C.K. ABDUL REHIM JUDGE dnc