IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 15TH DECEMBER 2011 / 24TH AGRAHAYANA 1933 WP(C).No. 33492 of 2011(J) -------------------------------------- PETITIONER(S): ----------------------- M/S.TATA PROJECTS LTD., 1-7-80 TO 87, PRENDERGHAST ROAD, MITHONA TOWERS-1, NEAR PARADISE CIRCLE, SECUNDERABAD-500 003, REPRESENTED BY K.S. KRISHNAN, ITS SENIOR GENERAL MANAGER & HEAD ACCOUNTS. BY ADV. SRI.HARISANKAR V. MENON, SMT.MEERA V.MENON, SRI.MAHESH V.MENON. RESPONDENT(S): -------------------------- 1. ASST. COMMISSIONER (WORKS CONTRACT), DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM-682 013. 2. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 3. INSPECTING ASST. COMMISSIONER, DEPARTMENT OF COMMERCIAL TAXES, KAKKANAD, ERNAKULAM-682 030. BY GOVT. PLEADER SMT.SHOBA ANNAMMA EAPEN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/12/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C).No. 33492 of 2011(J) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT –ASSESSMENT YEAR 2002-2003 DATED 18.12.2010. EXT.P1(A) COPY OF THE ASSESSMENT ORDER ISSUED BY THE 1ST RESPONDENT –ASSESSMENT YEAR 2003-2004 DATED 20.12.2010. EXT.P2 COPY OF APPELLATE ORDER ISSUED BY THE APPELLATE AUTHORITY DT.10.10.2011. EXT.P3 COPY OF LETTER ISSUED BY THE PETITIONER'S AUTHORISED REPRESENTATIVE BEFORE THE 1ST RESPONDENT DT.16.11.2011. EXT.P4 COPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT DT.16.11.2011. EXT.P5 COPY OF NOTICE ISSUED BY THE 1ST RESPONDENT DT.11.11.2011. EXT.P5(A) COPY OF NOTICE ISSUED BY THE 1ST RESPONDENT DTD.11.11.2011. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE rs S. SIRI JAGAN, J. ------------------------------------------- W.P.(C) No.33492 of 2011 ---------------------------------------------- Dated this the 15th day of December, 2011 JUDGMENT The petitioner challenges Exts.P5 and P5(a) assessment orders for the years 2002-2003 and 2003-2004 on the ground that those assessment orders have been passed without hearing the petitioner. Originally assessment orders were passed for three years namely, 2002-2003, 2003-2004 and 2004-2005. The petitioner challenged the assessment orders in appeals. The appellate authority passed Ext.P2 order passing a common order in respect of all the three years. In respect of the assessment year 2004-2005 the direction was as follows: “The turnover as per statement of accounts may be taken as total contract receipts. The appellant may be given an opportunity to reconcile the difference and if it is satisfactorily proved before the assessing authority. The assessing authority shall take the reconciled figures.” In respect of assessment years 2002-2003 and 2003-2004 the directions were as follows respectively: W.P.(C)No.33492/11 2 2002-03 “The labour expenses proved with vouchers, Gross Profit relating to labour and cost of establishment relating to labour shall be granted exemption.” 2003-04 “Exemption shall be given to the labour expenses proved with voucher, and cost of establishment related to labour and gross profit related to labour shall be grated exemption. Assessment may be completed on the above basis.” In accordance with the said directions, the assessing officer issued Ext.P4 notice to the petitioner directing them to produce documents in respect of the year 2004-05. But, in respect of the other two assessment years, the assessing officer passed Exts.P5 and P5(a) assessment orders, which, according to the assessing authority, is in accordance with the directions in Ext.P2 appellate order. 2. The contention of the petitioner is that although expressly no opportunity of being heard has not been given in Ext.P2, the petitioner must be deemed to have been given an opportunity to file additional evidence in support of their claim for exemption, which ought to have been given before passing orders as directed in Ext.P2. 3. The learned Government Pleader on instructions W.P.(C)No.33492/11 3 submits that in respect of assessment years 2002-2003 and 2003-2004, the direction was to pass fresh assessment orders on the basis of documents already on record as per the directions contained therein and therefore, in respect of those assessment years, no opportunity of being heard was contemplated. According to the learned Government Pleader, this must be read in conjunction with the direction in respect of assessment year 2004-2005, wherein the appellate authority has specifically directed an opportunity to reconcile the difference. As such, according to the learned Government Pleader, no further opportunity of being heard was contemplated in respect of the other two assessment years. 4. After hearing both sides, I am not inclined to entertain this writ petition against the assessment orders, insofar as the petitioner has an effective alternate remedy by way of appeal. Since the appellate authority has not directed the assessing authority to give any further opportunity for the years 2002-03 and 2003-04 in contradistinction to that for the year 2004-05, I do not think that, on that ground, I can interfere with the assessment orders in a writ petition. W.P.(C)No.33492/11 4 According to me, the remedy of the petitioner lies in challenging the assessment orders in appeals. Therefore, without prejudice to that right, this writ petition is dismissed. S. SIRI JAGAN, JUDGE acd W.P.(C)No.33492/11 5