IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 2ND NOVEMBER 2009 / 11TH KARTHIKA 1931 WP(C).No. 23590 of 2009(P) -------------------------- PETITIONER(S): ------------------------ P.MOIDEEN, S/O. ALAVI, PADINJARAYIL HOUSE, P.O.KARAPPURAM, EDAKKARA, MALAPPURAM DISTRICT. BY ADV. SRI.M.V.BOSE SRI.VINOD MADHAVAN SMT.NISHA BOSE RESPONDENT(S): --------------------------- 1. THE COMMERCIAL TAX OFFICER, OFFICE OF THE COMMERCIAL TAX OFFICER, COMMERCIAL TAXES, TIRURANGADI, MALAPPURAM DISTRICT. 2. THE INTELLIGENCE OFFICER, SQUAD NO.II, COMMERCIAL TAXES MINI CIVIL STATION TIRUR, MALAPPURAM DISTRICT. 3. THE DEPUTY TAHSILDAR (R.R.) TALUK OFFICE, NILAMBUR, MALAPPURAM DISTRICT. 4. THE DISTRICT COLLECTOR, MALAPPURAM. GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.23590 OF 2009 ------------------------------ Dated this the 2nd day of November, 2009 J U D G M E N T ---------------------- 1. Challenge in this writ petition is against Ext.P4 and P8 proceedings issued under the KGST Act and also against Ext.P12 and P13 demand notices issued under the Kerala Revenue Recovery Act. Ext.P4 & P8 are the proceedings issued on the basis of option submitted by the petitioner for availing Amnesty Scheme, with respect to payment of the amount of penalty imposed for the assessment year 1999-2000. By Ext.P4 notice the 1st respondent was given opportunity to object the proposal for rejection of his request for availing Amnesty Scheme, alleging that the petitioner had not opted for settlement of the entire arrears outstanding under the Act including tax, interest, surcharge etc:. The petitioner objected the said proposal contending that he had not received the assessment order imposing tax liability. But the authority found from the records that there was due service of the assessment order on the petitioner and therefore rejected the request for Amnesty, as evidenced from Ext.P8 proceedings. 2. I am of the opinion that the petitioner is not entitled W.P.(C).23590/09-P 2 to challenge the rejection of amnesty benefit, even if the contention that he was not served with the order of assessment is true and correct. Such a ground cannot be raised against rejection of amnesty benefit, because the fact remains that the assessment stands completed. Probably grounds raised against such assessment may be available to the petitioner with respect to challenge in an appeal against such assessment. But as long as the assessment stands completed amnesty request of the petitioner cannot be considered unless he had opted for settlement of the entire arrears. Therefore I do not find any reason to interfere with Ext.P8. 3. Ext.P12 and P13 are the notices issued for recovery of amounts of tax as well as surcharge assessed with respect to the year 1999-2000. According to the petitioner no pre-assessment notice nor any assessment order were served on the petitioner. The assessment was completed totally in violation of natural justice, is the contention. The petitioner further submits that inspite of specific requests Ext.P9 and P11, for supply of copy of the assessment orders, the petitioner was not served with the same, and therefore the petitioner is precluded from challenging the assessment before the appropriate statutory authorities. 4. In the counter affidavit filed on behalf of respondents 1 and 2 it is submitted that, the assessment order was passed on W.P.(C).23590/09-P 3 30.10.2006 and the order along with the demand notice was communicated to the petitioner through registered post in the address of his place of business. But the same was returned unclaimed. It is further stated that till date the petitioner has not approached the respondents for obtaining copies of the proceedings and if the petitioner would have approached the authority concerned, copy of the assessment order would have been served then and there. 5. It seems that the assessment with respect to the year was completed exparte and the petitioner was not availed of an opportunity to challenge the same before the statutory appellate authority. Having considered the above situation I am of the opinion that the respondents can be directed to serve a copy of the assessment order to the petitioner and the petitioner can be permitted to challenge the same before the appellate authority. 6. In the result the 1st respondent is directed to serve a copy of the assessment order pertaining to the year 1999-2000, if the petitioner makes an application for a certified copy, without any delay, at any rate within one week from the date of receipt of such application. On receipt of the certified copy the petitioner can avail statutory remedy by way of appeal against the assessment. The petitioner can also seek appropriate interim relief regarding stay against the recovery steps, before the W.P.(C).23590/09-P 4 appellate authority. 7. In order to facilitate the petitioner to get certified copy of assessment and to approach the appellate authority with a validly constituted appeal, steps for recovery initiated as evidenced by Ext.P12 and P13 are directed to be kept in abeyance for a period of one month from today. The writ petition is disposed of with the above directions. C.K.ABDUL REHIM, JUDGE. okb