IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 7TH JUNE 2010 / 17TH JYAISTHA 1932 WP(C).No. 17470 of 2010(G) -------------------------- PETITIONER --------------- KERALA STATE ELECTRICITY BOARD,VYDHUTHI BHAVAN,PATTOM,THIRUVANANTHAPURAM-695 004. BY ADV. SRI.C.K.KARUNAKARAN RESPONDENT --------------- ASSISTANT COMMISSIONER(ASSESSMENT) OFFICE OF THE ASSISTANT COMMISSIONER(SPECIAL CIRCLE),THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER ADV. MR. C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No. 17470 OF 2010 ......................................................................... Dated this the 7th June, 2010 J U D G M E N T The petitioner/Electricity Board is challenging finalisation of the assessments, as borne by Exts. P8 to P11, whereby the liability has been mulcted upon the shoulders of the Board without any regard to the actual liability or materials on record, that too, without any reference to the books of accounts, but for finalising the assessments merely on the basis of the 'Annual Administration Report' for the concerned years, which cannot be the basis for fixing the liability and hence is under challenge. 2. Heard the learned Government Pleader as well, who submits on the basis of the materials on record that the assessing authority has given adequate opportunity to the petitioner to substantiate the facts and figures, which however was not made use of, as clearly discernible from the observation made in the impugned orders themselves. The observation made W.P.(C) No. 17470 OF 2010 2 above are rather common in all the four impugned orders, which is extracted below for the convenience of reference: “A pre-assessment notice incorporating the proposal as above had been communicated to the assessee and invited its objection. It was also given an opportunity of personal hearing on 10.03.2010. This was duly received by the assessee on 03.03.2010. In response to the notice, the assessee had requested one month time to file objections; vide its letter dated 09.03.2010. And time was granted, upto 10.04.2010. Again, the assessee had requested two weeks time vide its letter dated 12.04.10 which was also granted. Now the assessee vide its letter dated 11.05.2010 had requested 30 days from 20.04.2010 for filing the reply. The assessee is dragging the case indefinitely with illicit motive. The reason stated by the assessee for seeking the adjournment is only for collecting details from various sub offices. This is not correct. It had already collected details from all its sub offices and had consolidated the datas and prepared W.P.(C) No. 17470 OF 2010 3 the Annual Administration Report for the year. The assessing authority had only relied upon the Report and issued the notice u/s. 25 of the KVAT Act 2003. No further details are required to be collected from sub offices as argued by the assessee in this case. Hence it signifies no reason to grant further time to file objection, since 71 days has been elapsed since the serving of notice to the dealer. It is therefore presumed that the dealer has no objection against the proposal and it is agreeing with the proposal.” 3. The learned Standing Counsel appearing for the Board submits that the course and procedure pursued by the assessing authority is per se wrong and illegal, simultaneously adding that the case projected by the petitioner that the assessment orders were passed not on the basis of the entries in the books of accounts, but on the basis of the Annual Administration Report, is rather conceded by the assessing authority. It is true that the petitioner wanted to have some time to file detailed objections, which had to be submitted only after getting necessary W.P.(C) No. 17470 OF 2010 4 instructions from the concerned sub offices. It was accordingly that the position was made clear as per Ext.P6 reply dated 12.04.2010 stating as follows: “........It appears that the above proposal was issued without understanding the fact that KSEB has two separate registrations under the KVAT Act & CST Act represented by Chief Engineer (Distribution South), Thiruvananthapuram and Chief Engineer ( Distribution North) Kozhikode . The entire materials purchased by the Board were for generation, distribution and transmission of electric energy. The works awarded by KSEB in connection with transmission and distribution of electric energy are mostly labour contract. KSEB also has its own work force and works like drawing lines, installation of posts, service connection etc are done by them. In order to file an effective reply to the Section 25 notices certain materials etc has to be collected f rom various sub offices.” 4. Since the issue could not be finalised on time, representation as borne by Ext. P7 dated 11.05.2010 seeking for W.P.(C) No. 17470 OF 2010 5 further time of 30 days from 26.04.2010 was submitted to the statutory authority. However, without paying any heed to the request made by the petitioner, the assessing authority sought to reject the said request and proceeded with further steps leading to Ext. P8 to P11 orders finalising the assessment ex parte, which are impugned in this Writ Petition. 5. The factual position that the petitioner sought for adjournment is not denied anywhere in the impugned orders. Further, the factual position that the assessment has been finalised only on the basis of the 'Annual Administration Report' and not based on the books of accounts, is also discernible from the said order. The only reasoning stated in Exts. P8 to P11 is that no further details are required to be collected from the sub offices but for the contents of the 'Annual Administration Report'. The course and procedure followed by the statutory authority does not appear to be correct or proper, as the figures are likely to vary on the basis of the books of accounts, for fixing the taxable turnover. The correctness of the figures is seriously disputed from the part of the respondents. W.P.(C) No. 17470 OF 2010 6 6. The learned Government Pleader submits that finalisation of the assessment is on the basis of the admitted figures; especially with regard to the quantum shown. In the said circumstances, this Court finds that the matter requires to be considered and dealt with in detail ; more so, since the cause of action pertains more to public money, even it be at the hands of the petitioner Board. 7. In the said circumstances, the petitioner is given one more opportunity to have the proceedings finalised on the basis of the the books of accounts and other relevant records. Accordingly, the impugned orders, Exts.P8 to P11 are set aside and the petitioner is directed to produce the books of accounts and other materials on record before the assessing authority/first respondent within two months , on which event, the proceedings shall be finalised and final assessment orders shall be passed in accordance with law, after giving an opportunity of hearing to the petitioner as expeditiously as possible, at any rate, within a period of two months, thereafter. Taking note of the admitted lapse on the part of the petitioner, the petitioner is directed to W.P.(C) No. 17470 OF 2010 7 satisfy cost of Rs.5000/- each for all the four assessment years, to compensate the loss sustained. The Writ Petition is disposed of, as above. P.R. RAMACHANDRA MENON, JUDGE. lk