IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 21ST MARCH 2011 / 30TH PHALGUNA 1932 WP(C).No. 956 of 2011(T) ------------------------------------ PETITIONER(S): ----------------------- C.K. DAYANANDAN, PROPRIETOR, M/S.ELIXIR FOODS AND TRADING, XIII/517A, `SAPNA', DESIYA KAVALA, VAZHAKKALA, COCHIN-682 021, ERNAKULAM DISTRICT. BY ADV. SRI.TOMSON T.EMMANUEL RESPONDENT(S): -------------------------- 1. COMMERCIAL TAX OFFICER, IST CIRCLE, COMMERCIAL TAXES, KALAMASSERY, COCHIN-682 024. 2. INTELLIGENCE OFFICER, SQUAD NO.III, COMMERCIAL TAXES, ERNAKULAM, COCHIN-682 024. R1 & R2 BY GOVT. PLEADER MR.V.K SHAMSUDHEEN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/03/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.956 of 2011 ------------------------------------------- Dated this the 21st day of March, 2011 J U D G M E N T ---------------------- Challenge in this writ petition is against Ext.P5 order of assessment completed against the petitioner with respect to the year 2004-05. Despite effective statutory remedy of appeal available, the order is impugned on the ground that the assessment was finalised in violation of the mandatory procedure prescribed under the relevant provisions and also in violation of the principles of natural justice. It is the contention of the petitioner that after filing objections to the proposal notice, the petitioner was not afforded with any opportunity of personal hearing and the objections were discarded unilaterally without affording any reasonable opportunity to the petitioner. 2. In a counter affidavit filed on behalf of the 1st respondent it is mentioned that, subsequent to filing of the objections, the petitioner personally appeared before this authority and a hearing was conducted in the matter. However, the said averment was refuted by the petitioner through a reply affidavit stating that no such opportunity was afforded and no such hearing was conducted. It is stated that the contentions W.P.(C).956/11 -2- were overruled without answering many of the objections raised against the proposal. It is pointed out that nothing is stated in the impugned order to the effect that any opportunity of personal hearing was afforded after filing the objections. 3. Going by the decisions reported in C.K. Sunny Vs. A.S.T.O. (2004 (2) KTR 26) as well as in Suzion Infrastructure Service Ltd. Vs. C.T.O. (2010 (3) KHC 299), it is repeatedly held by this court that the opportunity of hearing contemplated under the relevant provisions is not an empty formality and any non compliance of such mandatory procedure will vitiate the order of assessment. Keeping in mind the dictum laid as above, on a perusal of Ext.P5 impugned order, as well as the contentions raised on both sides, I am convinced that there is lack of proper opportunity of hearing afforded to the petitioner. Hence I am of the view that the impugned order is unsustainable in the eye of law. 4. In the result, the writ petition is allowed. Ext.P5 is hereby quashed. The 1st respondent assessing authority is directed to consider the matter and to pass fresh orders of assessment, after affording an opportunity of hearing to the petitioner. Needless to say that the petitioner shall be provided with opportunity to adduce documents and records in support of the contentions. It is also made clear that the petitioner will be W.P.(C).956/11 -3- at liberty to point out the outcome of the penalty proceedings which is now pending before the 2nd respondent, while considering the issue. 5. Fresh orders of assessment in this regard shall be issued as early as possible, at any rate within two months from the date of receipt of a copy of this Judgment. C.K.ABDUL REHIM, JUDGE. okb