IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 1ST JULY 2008 / 10TH ASHADHA 1930 W.A.No. 1359 of 2008 AGAINST THE JUDGEMENT IN WPC.17471/2008 DATED 12/06/2008 .................... APPELLANT/PETITIONER: ------------------------------------- JYOTHY LABORATORIES LTD. KADANASSERY P.O, TRISSUR DISTRICT, REPRESENTED BY ITS AUTHORISED SIGNATORY T.V.THILAKAN, SR.ACCOUNTS OFFICER, JYOTHY LABORATORIES LTD. BY ADV. SRI.V.SRIDHARAM SRI.SHAJI THOMAS PORKKATTIL SRI.T.V.VINU RESPONDENTS/RESPONDEMTS: ---------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, COMMERCIAL TAXES, GOVT. OF KERALA, TRIVANDRUM, KERALA. 2. COMMISSIONER OF COMMERCIAL TAXES DEPARTMENT OF COMMERCIAL TAXES, TRIVANDRUM, KERALA. 3. COMMERCIAL TAX OFFICER (AA) DEPARTMENT OF COMMERCIAL TAXES, THRISSUR, KERALA. 4. ASSISTANT COMMISSIONER (ASSESSMENT), COMMERCIAL TAXES, SPECIAL CIRCLE, KERALA. 5. DEPUTY COMMISSIONER (APPEALS) DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM, KERALA. BY SR.GOVERNMENT PLEADER SRI.MUHAMMED RAFIQ THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & A.K.BASHEER, J. ----------------------------------------------------- W.A.No.1359 of 2008 ---------------------------------------------- Dated, this the Ist day of July, 2008 JUDGMENT H.L.Dattu, C.J. The order of assessment passed for the assessment year 2006-2007 was called in question by the assessee before the learned Single Judge in W.P.(C) No.17471 of 2008. 2. The one and the only contention that was canvassed before the learned Single Judge was that, the assessing authority, without affording sufficient opportunity of hearing to the petitioner, has completed the assessments and therefore had requested the learned Single Judge to interfere with the orders of assessment so passed for the assessment years in question. 3. The learned Single Judge in his detailed and well-considered order has noticed the date on which the notice was issued to the petitioner asking him to produce the books of accounts etc. in support of the returns filed by him and also has referred to the orders passed by this Court wherein this Court has granted to the petitioner police protection to enter in to his factory. After noticing all these dates, the learned Single Judge is of the opinion, that, since the petitioner did W.A.No.1359/2008 -2- not choose to make use of the opportunity that was granted to him, at this belated stage he cannot be allowed to contend that he could not file his objections to the notice issued and further he was not heard in the matter. Having come to that conclusion, in our opinion, has rightly rejected the writ petition. In the words of the learned Single Judge: “5. I am not inclined to interfere in this matter under Article 226 of the constitution of India. It is to be noted that it is undisputed that the petitioner was issued with a notice dated 28-1-2008 which again, without the danger of any dispute being raised, the petitioner received on 28-2-2008. Petitioner has certainly devised Ext.P2 reply. In Ext.P2 reply, what is stated essentially is that they are disabled from responding in view of the circumstances prevailing in the factory and the petitioner sought some time to give their reply. This reply is taken note of by the authority when he passed Ext.P3 order. It is pertinent to note that Ext.P2 reply is undated. The fact that it is undated is borne out by reference to the same in Ext.P3 order also. It is submitted that the reply was on 14-3-2008. It is pertinent that the assessment order was passed on 21-4-2008 which means that the Assessing Officer did not proceed to pass an order in haste disregarding the request of the petitioner. In fact, W.A.No.1359/2008 -3- the request of the petitioner in Ext.P2 which is undated and which the petitioner claims to have been given on 14-3-2008 was for grant of some time. The order was passed after nearly five weeks. It is also important to bear in mind when the plea of natural justice is advanced, to see the attendant facts. Petitioner obtained an order of police protection from this Court vide Ext.P4 in August, 2007. Therein, the petitioner raised a complaint that the interim order of police protection was being flouted. The Court has, in Ext.P4, after noting his complaint, made it clear that the remedy of the petitioner lay in moving in contempt. Ext.P4(a) interim order was made absolute by Ext.P4(b). Ext.P4(b) judgment is in November, 2007. Having regard to the dates of Exts.P4(a) order and P4(b) judgment, it may not be open to the petitioner to contend that the petitioner was not in a position to get the custody of the records situated in the factory to file objection and to produce the records before the Authority. 6. The grant of an opportunity to substantiate the objections when the Assessing Authority proposes to reject the objections is too well established to require any reiteration. But, what the petitioner seeks in this case is a right of hearing without filing any objection. I do not think that the principles of natural W.A.No.1359/2008 -4- justice should be stretched to that extent, in that, even without filing any objection to the proposal, the petitioner should be afforded an opportunity of being heard. Having regard to all these circumstances, I decline jurisdiction under Article 226 of the Constitution of India, without prejudice to the right of the petitioner to canvass the legality of the impugned order before the statutory authority. Without prejudice to the right of the petitioner to approach the appellate authority, the Writ Petition is dismissed.” 4. Having carefully perused the order passed by the learned Single Judge, we are of the firm opinion that the learned Single Judge has not committed any error, whatsoever, which would call for our interference. Therefore, while affirming the findings and conclusions reached by the learned Single Judge, we reject the writ appeal. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE MS W.A.No.1359/2008 -5- MS/dk.