IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 7TH JANUARY 2011 / 17TH POUSHA 1932 WP(C).No. 382 of 2011(W) ------------------------ PETITIONER:- ------------------ M/S. KONCHERRY WEAVERS(P) LTD., MAYITHARA.P.O., CHERTHALA REPRESENTED BY ITS MANAGING DIRECTOR K.S.SHAJI. BY ADV. SRI.V.P.SUKUMAR SRI.BEJOY CHERIYAN RESPONDENTS:- --------------------- 1. THE FAST TRACK ASSESSMENT TEAM NO.III, COMMERCIAL TAXES, ALAPPUZHA REPRESENTED BY THE ASSISTANT COMMISSIONER(ASSMT), SPECIAL CIRCLE, COMMERCIAL TAXES, ALAPPUZHA. 2. THE COMMERCIAL TAX OFFICER-II, CHERTHALA. BY SR.GOVT.PLEADER SRI.C.K.GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. = = = = = = = = = = = = = = WP(C).No.382 of 2011-W. = = = = = = = = = = = = = = Dated this the 7th January, 2011. J U D G M E N T Challenge in this writ petition is against Ext.P3 order of assessment completed against the petitioner under Section 17D of the Kerala General Sales Tax Act (KGST Act), with respect to the year 2004. Ext.P3 is challenged without filing statutory appeal, on the ground that the order was issued without affording any reasonable opportunity to the petitioner for production of books of accounts or for objecting the proposal or after affording any opportunity of personal hearing. 2. According to the petitioner, the business premises of the petitioner remained closed since the Bank from where the petitioner availed the loan had taken over the possession of factory premises and kept the same under lock and key. WP(C).No.382 of 2011-W. 2 3. It is evident from Ext.P3 that the proposal for assessment was served by affixture in the business premises of the petitioner, on 12.6.2010, since the business place was remained closed. It is further stated that on enquiry it was revealed that the business place was remaining closed since last few months. Under such circumstance the authority proceeded with finalisation of the assessment on a best judgment basis. It is also contended by the petitioner that even a copy of the impugned order of assessment was not served on the petitioner and the petitioner got the copy only on making application for issuing certified copy. It is the case of the respondent that the copy of the assessment was also served only through affixture. 4. Learned counsel for the petitioner points out that, as per the provisions contained in Rule 63 of the KGST Rules, affixture of any notice can be effected only as a last resort, if the authority had failed in serving the same WP(C).No.382 of 2011-W. 3 through any other methods prescribed thereunder, including sending of notice by registered post in address of the assessee which is available with the authority. It is contended that the business place of the petitioner was remaining closed and therefore it was not justified on the part of the assessing authority to finalise the assessment merely on the basis of the affixture done, without attempting to serve notice by any other method as prescribed. It is further contended that the residential address of the Managing Director and other Directors were available and the notice ought to have been issued directly to such persons. 5. It is evident that the petitioner could not produce books of accounts or could not contend the proposed assessment on an effective manner. There is nothing to indicate that the petitioner was aware about the proceedings initiated with respect to the finalisation of the assessment. Considering such facts and circumstances, I WP(C).No.382 of 2011-W. 4 am of the view that the impugned order of assessment was finalised without affording adequate opportunity to the petitioner to represent their case. I find merit in the contention of the petitioner that the assessing authority ought to have attempted service of notice through any one of the methods provided under Rule 63 of the KGST Rules. Hence I am inclined to quash the assessment and to remand the matter to finalise the matter afresh with a direction to afford reasonable opportunity to the petitioner to produce the books of accounts and to raise contentions against the proposal. 6. Under the above circumstances, this writ petition is allowed and Ext.P3 is hereby quashed. The first respondent or the assessing authority concerned is directed to finalise the assessment afresh either under Sec.17(3) or under Sec.17D as the case may be, on issuing fresh notice and after affording proper opportunity to the petitioner to file objections to such proposal. Needless to say that the WP(C).No.382 of 2011-W. 5 petitioner shall be afforded with opportunity for production of books of accounts and other documents in support of their claim. Before finalising the assessment, the petitioner shall be afforded a reasonable opportunity of personal hearing. 7. The order of fresh assessment shall be issued as early as possible, at any rate within a period of three months from the date of receipt of a copy of this Judgment. C.K.ABDUL REHIM, (Judge) Kvs/-