IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 26TH AUGUST 2009 / 4TH BHADRA 1931 WP(C).No. 23635 of 2009(Y) -------------------------- PETITIONER: --------------- BEENA KURUVILA, PROPRIETRESS, MADAPARAMBIL ENTERPRISES, VELLOORKUNNAM, MUVATTUPUZHA. BY ADV. SRI.S.ANIL KUMAR (TRIVANDRUM) SRI.K.S.HARIHARAN NAIR RESPONDENT: --------------- THE ASSISTANT COMMISSIONER, COMMERCIAL TAXES, SPECIAL CIRCLE, MUVATTUPUZHA. BY GOVERNMENT PLEADER ADV. MR. C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. ........................................................................ W.P.(C) No.23635 OF 2009 ......................................................................... Dated this the 26th August, 2009 J U D G M E N T The petitioner is challenging Ext.P3 proceedings of the respondent whereby a composite order has been passed in respect of the 'assessment' and also imposing penalty under Section 67 of the K.G.S.T. Act. The grievance raised in the present Writ Petition is only to the extent that Ext.P3 imposes penalty upon the petitioner, which could not have been done without proper notice and in a mechanical manner. The law is now very clear that imposition of penalty is not to be done as a matter of course and the conscious act to constitute the violation has necessarily to be unearthed. It is also equally true that such course can be pursued only after issuing proper notice pointing out the circumstances as to the imposition of penalty. Obviously, Ext. P1 notice issued under Section 25 of the VAT Act is with reference to the assessment, however, adding a sentence that the 'penalty as provided under Section 67 of the Act will also be imposed'. 2. It is evident from Ext. P3 that the only notice referred W.P.(C) No.23635 OF 2009 2 to therein is Ext.P1 and P2 reply submitted in response to thereof itself shows that no separate notice warranting the circumstances to impose penalty has ever been issued to the petitioner and as such, Ext. P3 order to the extent it imposes penalty upon the petitioner, as part of the course of events, is not at all correct or sustainable. As such, Ext. P3 order to the extent it imposes penalty upon the petitioner is hereby set aside. It is made clear that if the respondent wants to proceed with the matter and to impose any penalty upon the petitioner, the same shall be pursued and finalised only after issuing proper notice to the petitioner. This will be without prejudice to the rights and liberties of the petitioner to pursue Ext.P4 appeal in so far as it relates to the assessment. The Writ Petition is disposed of as above. P.R. RAMACHANDRA MENON, JUDGE. lk