IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 10TH NOVEMBER 2010 / 19TH KARTHIKA 1932 WP(C).No. 33222 of 2010(C) -------------------------- PETITIONER(S): --------------- SAJ EARTH RESORT, NEDUMBASSERY, KOCHI-683111, REPRESENTED BY ITS MANAGING DIRECTOR, SAJAN K. VARGHESE. BY ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE SRI.MILLU DANDAPANI SRI.K.M.VENKATESH KAMATH RESPONDENT(S): --------------- 1. THE LUXURY TAX OFFICER, OFFICE OF THE DEPUTY COMMISSIONER, COMMERCIAL TAXES, MATTANCHERRY, KOCHI-682002. 2. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM-695001. SENIOR GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K. ABDUL REHIM, J ------------------------------- WP(C) NO. 33222 OF 2010 ------------------------------------- Dated this the 10th day of November, 2010 JUDGMENT Challenge in this Writ Petition is against Exts. P8, P8 (a) and P8(b) orders of assessment issued under the provisions of Kerala Tax on Luxuries Act. The impugned assessments are challenged without filing statutory appeal, on the ground that those orders are issued without compliance of the pre-requisite procedures contemplated under Section 6 (2) of the Act. It is specifically contended that no opportunity for filing objection to the pre assessment notice as well as no opportunity of personal hearing was afforded before finalizing the assessment. 2. On a perusal of the impugned order it is revealed that on receipt of the pre assessment notice, the petitioner had submitted a letter seeking time to file objections, on the ground of intervening 'Onam holidays' and due to non availability of the staff dealing with the 2 WP(C) No. 33222/2010 matters. 2. It is admitted that the petitioner has sent a telegram seeking adjournment as well as a letter was submitted in this regard. However, the assessing authority observed that prior to receipt of such letter and telegram, a series of notices were issued to the assessee calling for production of accounts and none of such notices were responded by the petitioner. 3. It is pertinent to note that the pre request for issuing a proposal notice as well as for affording opportunity of hearing before completion of assessment is mandatory, going by the relevant provisions. Merely because of the reason that the petitioner had failed to respond to any previous notices, the assessing authority is not relieved from strict compliance of the procedure contemplated with respect to finalization of assessments. I find no specific reason as to why the adjournment sought for by the petitioner for submitting objections, was denied. 3 WP(C) No. 33222/2010 4. Under such circumstances, I am of the view that it is only just and proper to afford the petitioner a reasonable opportunity to file objections and also for a personal hearing before finalization of the matter. Learned senior counsel appearing for the petitioner points out a decision of this Court in South Travancore Distilleries Vs. Asst. Commissioner of Commercial Taxes [1999 (1) KLJ 506] in this regard, in which it is stipulated that compliance of the pre request procedure is mandatory. 5. Under the above circumstances, Exts.P8, P8 (a) and P8 (b) assessments are hereby quashed. It is stated that the petitioner had already submitted objections to the proposal notices on 30.08.2010, as evidenced from Exts.P6, P6 (a) and P6 (b). The first respondent will consider those objections and pass fresh orders of assessments, after affording an opportunity of personal hearing to the petitioner. 6. Needless to say that the petitioner will be at 4 WP(C) No. 33222/2010 liberty to produce books of accounts and other documents in support of their contentions. Fresh orders of assessment in this regard shall be issued as early as possible, at any rate within a period of two months from the date of receipt of a copy of this judgment. 7. If there is any non co-operation from the side of the petitioner in finalizing the assessment, it will be free to the first respondent to issue orders on the basis of best judgment assessment. C.K. ABDUL REHIM JUDGE dnc