IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH TUESDAY, THE 26TH AUGUST 2008 / 4TH BHADRA 1930 WP(C).No. 20665 of 2008(I) ------------------------------------------- PETITIONER: ------------------ T.R.GOPAKUMAR, GOURI NANDANA HERBAL INDUSTRIES, DESOM. BY ADV. SRI.A.VIJAYAKUMAR SRI.A.N.SANTHOSH RESPONDENTS: ----------------------- 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVT.TAXES, GOVT.SECRETARAIT, THIRUVANANTHAPURAM. 2. AGRICULTURAL INCOME TAX AND SALES TAX OFFICER, COMMERCIAL TAXES, KAP COMPLEX, ALUVA. 3. DY.TAHSILDAR, R/R, ALUVA. BY GOVERNMENT PLEADER SHRI C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 20665 OF 2008 I -------------------------------------- Dated this the 26th August, 2008 JUDGMENT Petitioner challenges Ext.P10 and seeks a direction to cancel the revenue recovery proceedings for the year 1997 - 1998. He also challenges Ext.R2(a) notice and Ext.R2(c) assessment order. 2. Briefly put, the case of the petitioner is as follows: Petitioner was a manufacturer of Ayurvedic products. According to petitioner, it was found eligible for exemption from tax for the period from 1992 - 1993 to 1997 - 1998. Petitioner had approached this Court and this Court directed by Ext.P2 to reconsider the assessment. An amount of Rs.57,625/= was sought to be wrongly assessed for the year 1997 - 1998. There was no business done during the year. Petitioner approached the second respondent and reminded of Ext.P2 Judgment and the second respondent issued revised assessment orders for the period 1993 - 1994 to 1995 - 1996 vide Exts.P4 to WPC. 20665/08 I 2 P6. Ext. P7 is the order for the year 1996 - 1997. Petitioner challenged Ext.P3 and ultimately by Ext.P8 this Court directed the Appellate Authority to consider the stay petition. The Appeals were disposed of directing the Assessing Authority and accordingly interest was waived under the Amnesty Scheme (Ext.P9). While so, it is the case of the petitioner that as the balance amount of exemption was found exhausted, he did not do any business thereafter. On application, petitioner was served with copy of Ext.P3 notice for the year 1997 - 1998 vide Ext.P10. Ext.P11 is the application filed for issuance of a copy of the assessment order and there has been no reply. 3. A Counter Affidavit has been filed on behalf of the second respondent, inter alia, stating as follows: Petitioner was served with Section 17(3) notice as Ext.R2 (a) and evidenced by postal endorsement. Ext.R2(c) is the assessment order and Ext4s.R2(d) andR2(e) are the demand notices and postal endorsement and it was thereafter that revenue recovery proceedings have been taken. Notice was WPC. 20665/08 I 3 issued in Form 50 in obedience to the High Court Order which is produced as Ext.R2(f) to which the petitioner did not respond. Petitioner filed a Reply Affidavit also and thereafter the Writ Petition came to be amended incorporating challenge to Exts.R2 (a) and R2(c). 4. I heard the learned counsel for the petitioner and the learned Government Pleader. Learned Government Pleader would submit that actually the petitioner was served with a pre- assessment notice for 1997 - 1998 and he did not respond. The assessment order Ext.R2(c) came to be passed. Learned counsel for petitioner would point out that a perusal of Ext.R2(c) would show that it was passed on 31.1.2002 and it makes reference to the notice issued under Section 17(3). It is stated that the notice was returned by the postal authorities as "unclaimed". It is pointed out that a perusal of Ext.R2(b) would show that the notice which was sent, came to be returned only on 6.2.2002 as "unclaimed". Counsel would submit that actually the notice was sent to the factory address. In the light of this fact, it would WPC. 20665/08 I 4 appear to be correct that though notice was sent, was returned as "unclaimed" which statement is made on 31.1.2002 in Ext.R2 (c), even though the endorsement was made in Ext.R2(b) only on 6.2.2002. It does not appear to be correct. I feel that an opportunity should be granted to the petitioner. Accordingly, I feel that the matter has to be reconsidered with an opportunity of hearing to the petitioner. Accordingly, Ext.R2(c) is quashed and it is declared that Ext.P10 has no legs to stand on and it is open to the petitioner to file his objections to the pre-assessment notice which he has now received prior to 15.9.2008. It is open to the petitioner to file whatever objections and documents he is advised to file before the second respondent before 15.9.2008 and the matter will be proceeded with in accordance with law. The Writ Petition is disposed of as above. Sd/= K. M. JOSEPH, JUDGE kbk. // True Copy// PS to Judge