IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 9TH OCTOBER 2009 / 17TH ASWINA 1931 WP(C).No. 26616 of 2009(V) -------------------------- PETITIONER(S): --------------- PREMARAJAN, PROPRIETOR,'M/S.SEEJA WOOD INDUSTRIES', ALOOR,PATTITHARA P.O.,PALAKKAD DISTRICT. BY ADV. SRI.BOBBY JOHN RESPONDENT(S): --------------- 1. THE COMMERCIAL TAX OFFICER,PATTAMBI. 2. THE DEPUTY TAHSILDAR (RR), TALUK OFFICE,OTTAPALAM. BY GOVERNMENT PLEADER SRI. C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: shg/ C.K. ABDUL REHIM, J - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 26616 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of October, 2009 J U D G M E N T 1. Petitioner is a dealer in Timber. According to the petitioner he had filed returns for the month of 10/2007 to 02/2008 and thereafter he has not done any business, due to financial stringency. However consequent to a notice issued by the assessing authority proceedings were initiated for completing the assessment with respect to the period from 10/2007 to 03/2008. Ext.P2 is the assessment order issued with respect to the period from 10/2007 to 03/2008. With respect to the assessment for the period from 04/2008 to 7/2008 the petitioner was issued with a pre-assessment notice under section 22 (1) of the Kerala Value Added Tax Act, 2003 (KVAT Act) as evidenced by Ext.P3. Grievance of the petitioner is that eventhough he was requested to appear in person for a hearing conducted in connection with the assessment at 11 am. on 16.09.2008, the notice W.P.(C)No. 26616 of 2009 -2- was received by the petitioner only on 17.09.2008. Therefore the petitioner was not given any effective opportunity to object the proposal for assessment, is the submission. The 1st respondent has issued Ext.P4 confirming the proposal. Accordingly the petitioner is challenging Ext.P4 assessment completed with respect to the period 04/2008 to 7/2008 without filing any statutory appeal. 2. In the statement filed on behalf of the 1st respondent it is admitted that Ext.P3 notice was served on the petitioner only on 17.09.2008. But it is pertinent to note that the petitioner was provided with opportunity to file objections, if any, to the proposals supported with evidence if any, within a period of 7 days from the receipt of the said notice. Eventhough it was served on the petitioner on 17.09.2008 he has not chosen to appear before the assessing authority to file any objection or to produce documents in support of such objection. Further the petitioner had not chosen to seek any adjournment for personal hearing also. It is also stated that the petitioner W.P.(C)No. 26616 of 2009 -3- continued business without taking registration, and only by virtue of a street survey conducted by the Intelligence Wing of the Commercial Taxes Department, notice was issued to the petitioner. 3. The petitioner admitted that he had commenced business as early as in October, 2007 and that he had crossed the limit of turnover insisting registration. Eventhough the petitioner submitted application for registration he had not filed any return or remitted any tax. Hence the inspection was conducted at the premise of the petitioner on 14.01.2008, which unearthed huge quantity of purchase and sales effected by him. Therefore penal action was initiated against him. It is only on the above background that the proceedings for completing the assessment was initiated. 4. Having considered the rival contentions and facts and circumstances of the case, I am of the opinion that Ext.P4 assessment order need not be interfered with in exercise of jurisdiction vested under the Article 226 of the W.P.(C)No. 26616 of 2009 -4- Constitution of India, in view of the fact that alternate remedy of appeal is available to the petitioner. Further it is noticed that Ext.P4 assessment order is passed as early as on 30.09.2008 and the petitioner has not resorted to any appropriate action to challenge the same even after lapse of considerable time. Therefore the Writ Petition deserves no merit and the same is liable to be dismissed. 5. However, the learned counsel appearing for the petitioner sought stay of coercive steps pursuant to Exts.P2 & P4, and for granting reasonable time to pay off the liability covered under Ext.P2, and also to keep in abeyance realisation of amounts covered under Ext.P4 for a short period facilitating him to approach the appellate authority. 6. Considering the above request coercive steps for realisation of the amount covered under Ext.P4 is directed to be kept in abeyance for a period of two (2) months for facilitating the petitioner to move before the appellate authority. With respect to amounts covered under Ext.P2 assessment, the petitioner is granted permission to pay off W.P.(C)No. 26616 of 2009 -5- the liability in three (3) equal monthly installments starting from 15th November, 2009 and on or before the 15th day of every succeeding month. This writ petition is disposed as above. C.K. ABDUL REHIM JUDGE shg/