IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN WEDNESDAY, THE 19TH MARCH 2008 / 29TH PHALGUNA 1929 OP.No. 4566 of 2003(R) ------------------------------- PETITIONER: ------------------- V.ABDUL KHADER RAHIMAN, DURBAVILA VEEDU, T.B.JUNCTION, PUNALUR. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENT: --------------------- THE SALES TAX OFFICER, ANCHAL, KOLLAM DISTRICT. BY GOVERNMENT PLEADER (NO MEMO) THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 19/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP. NO.4566/2003 ORDER ON CMP. NO.8061/2003 IN OP. NO.4566/2003 CLOSED 19.03.2008 SD/- P.R.RAMAN, JUDGE APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE ORDER IN STA 516/93 PASSED BY THE ADDL. APPELLATE COMMISSIONER DT. 17.4.93. EXT.P2:- COPY OF THE PRE-ASSESSMENT NOTICE DT. 18.7.98 ISSUED BY THE RESPONDENT. EXT.P3:- COPY OF THE PETITION DT. 14.8.98 SUBMITTED BY THE PETITIONER TO THE RESPONDENT. EXT.P4:- COPY OF THE ORDER OF THE TRIBUNAL IN TA. NO.481/99 D.T. 19.2.2000. EXT.P5:- COPY OF THE PRE-ASSESSMENT NOTICE DT. 5.10.02 ISSUED BY THE RESPONDENT TO THE PETITIONER . EXT.P6:- COPY OF THE REVISED ASSESSMENT ORDER FOR 1991-92 ISSUED BY THE RESPONDENT DT. 12.2.01. EXT.P7:- COPY OF THE OBJECTION TO EXT.P5 NOTICE DT. 5.11.02 SUBMITTED BY THE PETITIONER. /TRUE COPY/ P.A. TO JUDGE tss P.R.RAMAN, J. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ O.P.No.4566 of 2003-R ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 19th day of March, 2008 J U D G M E N T The petitioner is an assessee under the K.G.S.T Act, 1963. For the year 1990-91, he showed an interstate sales turnover of Rs.3,00,000/-. Assessment were, however, finalised by the assessing authority estimating the turnover of Rs.24,20,000/-. Aggrieved by the said assessment, petitioner filed appeal before the appellate authority. That order was set aside by the appellate authority remanding the matter for fresh consideration by order dated 17/04/1993, as evidenced by Ext.P1. A revised order was passed on 27/01/1996 which is again a subject matter of challenge. That order was again set aside by the Appellate Assistant Commissioner and a revised order was passed by order dated 20/05/1997. This order was again challenged, on the ground that details of the alleged check post records were not furnished to the petitioner herein and he was not given a fair opportunity to verify its contents, and the revised assessment was set aside by order dated 15/04/1998. Hence, the assessment was proposed to be completed after refixing the total and taxable turnover of Interstate O.P.No.4566/2003-R -: 2 :- Sales at Rs.8,60,000/-, as evidenced by Ext.P2. This was objected to by the petitioner vide Ext.P3. Overruling the objections, assessments were completed. Ultimately, this objection was challenged before the Tribunal. Ext.P4 order was passed by the Tribunal on 19/02/2000 allowing the appeal, again remanding the matter. Pursuant to the remand order, pre-assessment notice was issued vide Ext.P5, which is under challenge in this original petition. 2. The ground for remanding the matter by the Tribunal as evidenced by Ext.P4 is that the assessment was made rejecting the objection of the petitioner without giving him the copies of the declarations in check post and without affording an opportunity to cross-examine those persons. The Tribunal relied on the decision reported in K.M.Mohammed v.The Intelligence Officer and others [(1999) 7 KTR 378] and directed that the copies of the Check post declarations shall be furnished to the petitioner and after making proper enquiries of the genuineness of the transactions depicted in the said declarations and after considering the explanations of the petitioner/appellant and after hearing the appellant fresh order shall be passed. Therefore, the revised O.P.No.4566/2003-R -: 3 :- assessment was passed on the third round of litigation and the Tribunal found that the petitioner ought to be given copies of the declarations in the check post. Normally, if the declarations are not available, that is a matter which ought to have been brought to the notice of the Tribunal so that the Tribunal could have passed appropriate orders either allowing the appeal of the assessee or passing such orders as may be deemed appropriate in the situation. No such attempt was made by the Assessing Officer. On the other hand, he sought to justify the non availability of the information of the declarations in the Check Post in Ext.P5 notice, now issued, stating that they are not available in the Check Post after a period of 12 years. Why this was not brought to the notice of the Tribunal when the matter was pending before it or atleast by filing review application is not, however, stated anywhere by filing any counter affidavit. Further, the Assessing Officer thinks that instead of giving copies of the declaration, copies of the register maintained in the check post will be a substitute to comply with the principles of natural justice. First of all, the assessing officer has no such power to substitute something in the place of some other that has been directed by the Tribunal to give. At any rate, since this is a notice proposing to revise the assessment they cannot place O.P.No.4566/2003-R -: 4 :- reliance on any material other than those referred to in the notice. Whether that will justify a revised assessment is a subject matter to be challenged in an appropriate forum, that is left open. For the present, I need only say that the various bills referred to in the statement must be furnished to the petitioner/appellant if the Assessing Officer has to place reliance on such piece of evidence for the purpose of passing any revised order or else otherwise, it will be contrary to the justice and for that alone Ext.P5 is to be quashed. 3. In the result, without quashing Ext.P5, at this stage, direction is given to the Assessing Officer to furnish the bills referred to in Ext.P5, to the petitioner and after giving him an opportunity of hearing, pass orders. Original petition is thus allowed in the above terms. P.R.RAMAN, Judge ms