IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 31ST OCTOBER 2011 / 9TH KARTHIKA 1933 WP(C).No. 11777 of 2010(V) -------------------------- PETITIONER:- ------------------ K.V.JOHNY, PROPRIETOR, M/S.JWALA DIAMONDS, TC NO.XI/479(1), AMBADY LANE, VELIYANNUR, THRISSUR-21. BY ADV. SRI.TOMSON T.EMMANUEL RESPONDENTS:- --------------------- 1. THE COMMERCIAL TAX OFFICER, COMMERCIAL TAXES, 4TH CIRCLE, THRISSUR. 2. THE DEPUTY COMMISSIONER, COMMERCIAL TAXES, THRISSUR. 3. THE COMMISSIONER OF COMMERCIAL TAXES, COMMERCIAL TAXES, THIRUVANANTHAPURAM. BY GOVT.PLEADER SMT.SHOBA ANNAMMA EAPEN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 11777 of 2010(V) APPENDIX PETITIONER'S EXHIBITS:- P1: COPY OF SHOP INSPECTION REPORT DTD.2.4.2008 PREPARED BY THE FIRST RESPONDENT AND ISSUED TO THE PETITIONER. P1(a): COPY OF DAY BOOK FOR THE PERIOD 24.3.2008 TO 31.3.2008 (2007-08) PAGE NO.1 VERIFIED AND SIGNED BY THE FIRST RESPONDENT AT THE TIME OF ISSUING EXT.P1 TO THE PETITIONER. P1(b): COPY OF CASH BOOK FOR THE PERIOD 24.3.2008 TO 31.3.08 (2007-08) PAGE NO.1 VERIFIED AND SIGNED BY THE FIRST RESPONDENT AT THE TIME OF ISSUING EXT.P1 TO THE PETITIONER. P2: COPY OF PERMISSION FOR COMPOUNDING GRANTED TO THE PETITIONER, BY THE FIRST RESPONDENT IN FORM NO.4DF DATED 30.6.08, PURSUANT TO VALID APPLICATION OF THE PETITIONER. P3: COPY OF ORDER NO.R1.685/09 DATED 24.2.09 ISSUED BY THE DEPUTY COMMISSIONER, TO THE PETITIONER, IN CANCELING EXT.P2 PERMISSION GRANTED BY THE FIRST RESPONDENT. P4: COPY OF ORDER NO.R1.17531/09/CT DATED 8.7.2009 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER, CONTAINING SPECIFIC DIRECTIONS AND OBSERVATIONS, TO THE FIRST RESPONDENT. P5: COPY OF LETTER REQUESTING TO PASS ORDERS IN EXT.P2, ON THE BASIS OF EXT.P4 DIRECTIONS OF THE 3RD RESPONDENT. P5(a): COPY OF CLOSING STOCK INVENTORY AS ON 31.3.2008 IN FORM NO.53, PRODUCED BEFORE THE FIRST RESPONDENT ALONG WITH EXT.P5, BY THE PETITIONER. P5(b): COPY OF AUDITED TRADING, PROFIT AND LOSS ACCOUNT FOR THE PERIOD 24.3.2008 TO 31.3.2008, PRODUCED BEFORE THE FIRST RESPONDENT ALONG WITH EXT.P5, BY THE PETITIONER. P5(c): COPY OF AUDITED BALANCE SHEET AS ON 31.3.2008, PRODUCED BEFORE THE FIRST RESPONDENT ALONG WITH EXT.P5, BY THE PETITIONER. P6: COPY OF NOTICE NO.32081485623/07-08 DATED 6.7.2009 ISSUED TO THE PETITIONER, BY THE FIRST RESPONDENT, CALLING BOOKS OF ACCOUNTS FOR 2007-08. P7: COPY OF ORDER OF PENALTY NO.32081485623-C DATED 7.10.2008, ISSUED BY THE FIRST RESPONDENT, TO THE PETITIONER. P8: COPY OF NOTICE NO.32081485623/07-08 DATED 24.11.09 ISSUED TO THE PETITIONER, BY THE FIRST RESPONDENT, WHEREIN FRESH AND NEW FACTS ARE STATED, DEVIATING FROM THE ORIGINAL ISSUE, FOR WHICH HE HAS NO AUTHORITY. P9: COPY OF REPLY DATED 4.1.2009, SUBMITTED BEFORE THE FIRST RESPONDENT, BY THE PETITIONER. (.............2) -: 2 :- P9(a): COPY OF ISSUE VOUCHER NO.1 DATED 30.3.2008 ISSUED TO THE GOLDSMITH BY THE PETITIONER, WHICH IS SEEN VERIFIED BY THE FIRST RESPONDENT ON 19.8.2009 ITSELF. P10: COPY OF THE CLARIFICATION NO.C3.35160/07/CT DATED 14.1.2008 ISSUED BY THE 3RD RESPONDENT IN JOHNSON & JOHNSON LTD., KALAMASSERY, WHICH IS BINDING ON RESPONDENTS 1 AND 2, LATTER WHICH WAS UP HOLD IN THE REPORTED CASE IN 17 KTR 613 (KER) BY THIS HON'BLE COURT. P11: COPY OF FORWARDING LETTER DTD.22.1.2010 OF THE PETITIONER ALONG WITH COPY OF THE JUDGMENT OF THIS COURT DTD.12.1.2010 IN WP(C).NO.942 OF 2010. P12: COPY OF ORDER NO.32081485623 DTD.13.1.2010 U/S.8(f)(ii) OF THE KVAT ACT, OF THE FIRST RESPONDENT IN CANCELING EXT.P2 PERMISSION ALREADY GRANTED. RESPONDENTS' EXHIBITS:- NIL. ( TRUE COPY ) PA TO JUDGE. Kvs/- S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 11777 of 2010 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 31st day of October, 2011. J U D G M E N T The petitioner challenges Ext.P12 order of assessment passed by the first respondent under the Kerala Value Added Tax Act. For maintaining a writ petition against the assessment order by-passing the statutory remedies, the petitioner submits that by Ext.P11 Judgment, this court has specifically directed the Assessing Authority to consider the applicability of the decision of this court in Johnson & Johnson vs. Asst. Commissioner (Assmt.), (2009) 17 KTR 613 (Ker.), which has not been complied with by the assessing authority while passing Ext.P12 Order. 2. I have heard the learned Govt. Pleader also. On a reading of P12, I do not find any consideration of the applicability of the said decision to the petitioner's case as directed by this Court. When this Court specifically directs the Assessing Authority to consider the case of the petitioner in the light of the decision of this Court, the first respondent cannot, without complying with the direction, pass orders without reference to the said decision. He is bound to consider and take a decision as to whether that decision is applicable to the facts of the petitioner's case. For having not done so, I am inclined to quash Ext. P12 and direct to re-consider the matter afresh. Accordingly Ext.P12 is quashed. The first respondent shall re-do the assessment afresh and pass fresh orders after hearing W.P(C) No. 11777 of 2010 -: 2 :- the petitioner. While passing orders the first respondent shall specifically advert to the decision referred to above and enter a finding as to whether the decision is or is not applicable to the facts of the petitioner's case. The writ petition is allowed as above. Sd/- S. Siri Jagan, Judge. Tds/