IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 15TH JANUARY 2010 / 25TH POUSHA 1931 WP(C).No. 1132 of 2010(N) PETITIONER: A.A.KARIM, S/O. APPAKHAN, AGED 67, SAJIMA MANZIL, AVANANCHERRY, ATTINGAL, PROPRIETOR M/S.MAYOORI COLLECTIONS, PALACE ROAD, ATTINGAL. BY ADV. SRI.R.S.KALKURA SRI.M.S.KALESH SRI.HARISH GOPINATH SRI.V.VINAY MENON SRI.M.AJAY (IRUMPANAM) RESPONDENTS: 1. STATE OF KERALA, REP. BY ITS SECRETARY, REVENUE, GOVT. OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE INTELLIGENCE OFFICE, WARD NO.2, COMMERCIAL TAXES, TRIVANDRUM AT ATTINGAL. 3. THE DEPUTY COMMISSIONER, APPEALS, COMMERCIAL TAX, THIRUVANANTHAPURAM. 4. DEPUTY TAHSILDAR, REVENUE RECOVERY, TALUK OFFICE, CHIRAYINKEEZHU. BY GOVERNMENT PLEADER MR. C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J - - - - - - - - - - -- - - - - - - - - - - - - W.P.(C) No.1132 of 2010 - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of January , 2010 J U D G M E N T Challenging Ext.P3 order passed by the assessing authority imposing the penalty under Section 67, the petitioner has filed Ext.P4 appeal before the third respondent. However, during the pendency of the said proceedings before the appellate authority, revenue recovery proceedings were initiated against him, which was challenged in W.P.(C) No.34673/2009 leading to Ext.P8 Judgment. 2. As borne by Ext.P8 Judgment, the matter was disposed of directing the third respondent to pass final orders on Ext.P4 appeal in the manner specified therein. 3. The Ext.P10 is the final order passed by the third respondent which however is dated 'manually' as 18/9/2009. This shows that, even on the date of passing Ext.P8 verdict dated 4/12/2009, the third respondent appellate authority -2- W.P.(C) No.1132 of 2010 had passed Ext.P10 order, which was not brought to the notice of this Court. However, vide Ext.P8 Judgment, since this Court has only intercepted the recovery proceedings during pendency of the appeal filed before statutory authority. The petitioner has also got a case that Ext.P10 was passed only much later, showing a 'prior date'. 4. The direction contained in Ext.P10 appeal appears to be more in favour of the petitioner, holding that the assessing authority was not justified in denying an opportunity of hearing before imposing the penalty under Section 67. Hence, the petitioner was declared as entitled to be heard before the proceedings were finalised, simultaneously giving necessary directions to the assessing authority in this regard. The petitioner's case is that the wording in Ext.P10 rather makes the opportunity of hearing as an 'empty formality' and contends that the impugned order was not actually set aside but amounts to be kept in abeyance, to see whether the petitioner/appellant appears -3- W.P.(C) No.1132 of 2010 before the assessing authority for availing the opportunity of hearing and if not, to have it revived as such. 5. Heard the learned Government Pleader as well. Considering the facts and circumstances and the order passed by the appellate authority, holding that the petitioner ought to have been given an opportunity for hearing before passing Ext.P3 order, it cannot but be held that Ext.P3 is no more valid and existing. Accordingly, the first and second respondents are directed to finalise the proceedings afresh, in terms of Ext.P8 verdict already passed by this Court and of course after giving an opportunity of hearing to the petitioner. The proceedings shall be finalised within 2 months from the date of receipt of a copy of this Judgment. The writ petition is disposed of as above. P.R.RAMACHANDRA MENON (JUDGE) nl