IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 23RD JUNE 2011 / 2ND ASHADHA 1933 WP(C).No. 12259 of 2011(F) -------------------------------------- PETITIONER(S): -------------------- DOW AGROSCIENCES INDIA PVT. LTD. (FORMERLY DE-NOCIL CROP PROTECTION PVT. LTD.), XV/1026, TEAKNIT INDUSTRIAL COMPLEX, MALAMPUZHA ROAD, KANJIKODE WEST, PALAKKAD-678623, REP. BY RAMOLLA KARANI, AUTHORISED SIGNATORY. BY ADV. SRI.A.KUMAR RESPONDENT(S): ------------------------ 1. THE FAST TRACK TEAM NO.III, PALAKKAD, COMMERCIAL TAXES DEPARTMENT, CAMP AT IIND CIRCLE, PALAKKAD-678001. 2. COMMERCIAL TAX OFFICER, SECOND CIRCLE, PALAKKAD-678001. 3. COMMERCIAL TAX OFFICER, SECOND CIRCLE, KALAMASSERY AT PALARIVATTOM-25. R1 TO R3 BY GOVERNMENT PLEADER SRI.V.K.SHAMSUDHEEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.12259/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PROPOSLA FOR THE ASSESSMENT YEAR 2001 &2002 FOR ASSESSMENT UNDER THE DXT ACT DTD. 4.2.2010. P2:- COPY OF THE REPLY TO THE NOTICE DTD. 9.2.2010. P3:- COPY OF THE ACKNOWLEDGEMENT DTD. 22.6.2006 OF THE F- FORMS. P3(a):- COPY OF THE ACKNOWLEDGEMEN DTD. 1.7.2006 OF THE CHECK POST PROOF AS PER LOCAL DELIVERY BOOK. P4:- COPY OF THE ASSESSMENT ORDER DTD. 11.2.2010 RECEIVED ON 14.3.2011. P4(a):- COPY OF THE DEMAND NOTICE OF 11.2.2010 FOR CST. P5:- COPY OF THE KGST ASSESSMENT ORDER FOR 2001-2002. P5(a):- COPY OF THE DEMAND NOTICE . RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss C.K.ABDUL REHIM, J. ------------------------------- W.P.(C).No.12259 of 2011 ------------------------------- Dated this the 23rd day of June, 2011. J U D G M E N T Ext.P4 order of assessment finalised against the petitioner by the 1st respondent, under the provisions of the Central Sales Tax Act, with respect to the year 2001-02, is under challenge in this writ petition. Claim for exemption made on the basis of stock transfer which were supported by 'Form-F' declarations was not fully allowed, is the contention on merits. 2. It is evident that prior to finalisation of the assessment, the petitioner was issued with a proposal notice and a detailed reply was submitted. Specific contention of the petitioner is that, they have already filed 8 numbers of 'F-Form' declarations before the 3rd respondent, covering a turnover of Rs.4,69,01,566.33, apart from other 'F-Forms' submitted relating to turnover of Rs.3,29,12,308.80 and Rs.1,55,35,968.63. But the 3rd respondent had failed in forwarding the 8 numbers of 'F-Form' declaration to the 1st 2 W.P.(C).No.12259 of 2011 respondent, while finalising the assessment. 3. It is noticed that the claim based on 'F-Forms' submitted, was specifically raised in the objections submitted to the proposal notice. But the 1st respondent, while finalising the assessment, had allowed only the 'F- Forms' that were available, which were forwarded by the 3rd respondent for consideration. Petitioner asserts that the 8 numbers of 'F-Forms' which were missing were in fact submitted to the 3rd respondent, for which an endorsement was given in the 'Local Delivery Book' (Ext.P3). 4. It is further contended that, before finalising the assessment, the 1st respondent has not afforded any opportunity for personal hearing and the above facts were omitted to be considered by the 1st respondent. Hence the petitioner seeks to set aside Ext.P5 order of assessment and to remand the matter for fresh consideration. It is also mentioned that the 8 numbers of 'F-Forms', which were not considered by the 1st respondent, is still available in the office of the 3rd respondent and the same could be 3 W.P.(C).No.12259 of 2011 considered while finalising fresh assessment. 5. In the counter affidavit filed on behalf of respondents 1 to 3 it is mentioned that, the 3rd respondent had transferred all the records available, to the 1st respondent and no records were remaining in his office. But it is pertinent to note that, there is no specific denial regarding acceptance of the 8 'F-Forms', nor there is any denial of the genuineness of the acknowledgment contained in Ext.P3 Delivery Book. Further, it is pertinent to note that Ext.P4 order does not reveal about any specific opportunity of personal hearing afforded to the petitioner before finalisation of the assessment, which is mandatory. 6. Under the above mentioned circumstances, I am of the view that, a reconsideration of the matter after affording the petitioner an opportunity to substantiate his claims based on the alleged 'F-Forms' already submitted, need be allowed to serve the interest of justice. Hence, I am inclined to set aside the impugned order of assessment and to remit the matter for fresh consideration. 4 W.P.(C).No.12259 of 2011 7. Accordingly, the writ petition is allowed and Ext.P4 order of assessment is hereby quashed. The respondents are directed to finalise the assessment afresh, either resorting to procedure contemplated under Section 17 D or under Section 17(3) of the Kerala General Sales Tax Act. The petitioner shall be afforded with an opportunity to substantiate his claims based on the records, if any available with the respondents. Fresh order of assessment shall be issued after affording reasonable opportunity as mentioned above and also an opportunity for personal hearing to the petitioner, at the earliest possible, at any rate within a period of six weeks from the date of receipt of a copy of this judgment. C.K.ABDUL REHIM, Judge ami/