IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 21ST MARCH 2011 / 30TH PHALGUNA 1932 WP(C).No. 8434 of 2011(D) ---------------------------------------- PETITIONER(S): ------------------------ M/S. CHERAI BEACH RESORTS, BEACH ROAD, VYPIN ISLAND, IX/633A, CHERAI. BY ADV. SMT.T.RADHAMANY RESPONDENT(S): --------------------------- 1. COMMERCIAL TAX OFFICER (LT), OFFICE OF THE DEPUTY COMMISSIONER, COMMERCIAL TAXES, MATTANCHERRY - 682 002. 2. COMMISSIONER OF COMMERCIAL TAXES, PUBLIC OFFICE BUILDING, VIKAS BHAVAN.P.O., THIRUVANANTHAPURAM - 695 001. 3. GOVERNMENT OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVT.SECRETARIAT, THIRUVANANTHAPURAM - 695 001. R1 TO R3 BY GOVERNMENT PLEADER SRI. V.K.SHAMSUDHEEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.8434/2011 D APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF REGISTRATION CERTIFICATES IN FORM IC DTD. 14/02/05 ISSUED BY THE 1ST RESPONDENT. P2: COPY OF RELEVANT PAGE OF ANNUAL RETURN FILED FOR THE YEAR 09-10. P3: COPY OF THE MONTHLY RETURN FILED FOR THE MONTH OF FEBRUARY 2011. P4: COPY OF FORM 1B DTD. 27/04/2007. P5: COPY OF THE ASSESSMENT ORDER DTD. 22/10/2010 ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2008-09. P6: COPY OF THE REOPENED ASSESSMENT ORDER DTD. 30/10/2010 ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2005-06. P7: COPY OF THE RE OPENED ASSESSMENT ORDER DTD. 30/10/2010 ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2006-07. P8: COPY OF THE PENALTY NOTICE O.L.T.1107/2005-06 DTD. 18/11/10 ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2005-06. P9: COPY OF THE PENALTY NOTICE NO.L.T.-1107/2006-07 DTD. 18/11/10 ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2006-07. P10: COPY OF THE REPLY FILED BY THE PETITIONER DTD. 29/11/10 FOR THE YEAR 2005-06. P11: COPY OF THE REPLY FILED BY THE PETITIONER DTD. 29/11/10 FOR THE YEAR 2006-07. P12: COPY OF THE 2ND NOTICE ISSUED BY 1ST RESPONDENT DTD. 22/12/10 FOR THE YEAR 2005-06. Kss ..2/- ..2.... WPC.NO.8434/2011 D P13: COPY OF THE 2ND NOTICE ISSUED BY 1ST RESPONDENT DTD. 22/12/10 FOR THE YEAR 2006-07. P14: COPY OF THE SECOND REPLY FILED BY THE PETITIONER DTD. 4/1/11 FOR THE YEAR 2006-07. P15: COPY OF THE SECOND REPLY FILED BY THE PETITIONER DTD. 4/1/11 FOR THE YEAR 2006-07. P16: COPY OF THE PENALTY ORDER NO.LT-1107/2005-06 DTD. 14/02/2011 ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2005-06. P17: COPY OF THE PENALTY ORDER NO.LT-1107/2006-07 DTD. 14/02/2011 ISSUED BY THE 1ST RESPONDENT FOR THE YEAR 2006-07. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss C.K.ABDUL REHIM, J. ------------------------------- W.P.(C).No.8434 of 2011 ------------------------------- Dated this the 21st day of March, 2011. J U D G M E N T Exts.P16 and P17 orders imposing penalty under section 17(A) of the Kerala Tax on Luxuries Act, 1976 (KTL Act), is the subject matter of challenge in this writ petition. It is noticed that the petitioner has got an effective remedy of appeal as provided under the statute against the impugned orders. But the petitioner is assailing the orders imposing penalty without resorting to the statutory appeal on the ground that the penalty orders were issued without jurisdiction. 2. According to the petitioner, the orders of penalty were issued on the basis of Exts.P6 and P7 re-opened assessments. It is the contention of the petitioner that, Exts.P6 and P7 orders are issued under section 6(5) of the KTL Act with respect to escaped turnover. Learned counsel for the petitioner points out that, the statute does not contemplate imposition of any penalty if any escaped 2 W.P.(C).No.8434 of 2011 turnover is detected and the assessment is re-opened. Therefore, imposition of penalty under 17(A) was not warranted in the case at hand, is the contention. 3. Learned Government Pleader, per contra, contended that the provisions for imposition of penalty contemplated under 17(A) is independent of the procedure contemplated for re-opening of the assessment. Penalty can be levied if any offence is detected as enumerated under section 17(A), is the contention. Since the allegation is regarding non-keeping of real and complete accounts and failure to submit true and correct returns, the penalty is sustainable, is the contention. 4. Further contention of the petitioner is that, while finalising the order imposing penalty, no effective opportunity of hearing was afforded to the petitioner. It is also contended that, only a composite notice of proposal and hearing was issued and there was no effective opportunity of personal hearing afforded. On a perusal of 3 W.P.(C).No.8434 of 2011 Exts.P16 and P17, it is evident that the petitioner had submitted objections to the proposal and thereafter the petitioner was given a further opportunity to produce documents in support of their contentions. 5. However, considering the effective appellate remedy available under the statute, I am of the view that, I need not go into the merits of any of the contentions raised. I am of the considered opinion that, there is no total lack of jurisdiction in passing the impugned orders, nor there is any patent violation of mandatory procedure which nullifies the effect of the orders. Hence I am of the opinion that, the writ petition is not maintainable and the petitioner has to seek appropriate remedy before the appellate authority. 6. Confronted with the above situation, learned counsel for the petitioner requested for indulgence of this Court in restraining further steps for a reasonable period, in order to facilitate the petitioner to approach the appellate authority. While dismissing the writ petition the 4 W.P.(C).No.8434 of 2011 respondents are restrained from recovery of amounts covered under Exts.P16 and P17 for a period of 3 months from today in order to facilitate the petitioner to approach the appellate authority and to seek appropriate interim relief. C.K.ABDUL REHIM, Judge ami/