IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 21ST JUNE 2011 / 31ST JYAISHTA 1933 WP(C).No. 8202 of 2011(A) -------------------------------- PETITIONER(S): ------------------- SHIBU VARGHESE, PROPRIETOR, M/S. CITY MARKETING AGENCIES, C.K.VALAVU, MATHILAKAM, KODUNGALLOR, THRISSUR DISTRICT. BY ADV. SRI.P.N.DAMODARAN NAMBOODIRI RESPONDENT(S): -------------------- 1. THE COMMERCIAL TAX OFFICER, DEPARTMENT OF COMMERCIAL TAXES, KODUNGALLOR-685508 2. INSPECTING ASSISTANT COMMISSIONER, DEPARTMENT OF COMMERCIAL TAXES, IRINGALAKUDA-680121. BY GOVT.PLEADER SRI.V.K.SHAMSUDHEEN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 8202/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE SAID AUDIT REPORT IN FORM 13 & FORM 13A DATED 20/10/2008 FILED BY THE PETITIONER BEFORE 1ST RESPONDENT FOR THE YEARS 07-08. P2: COPY OF THE SAID NOTICE NOS.81065244/08 DATED 08/02/2011 ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER FOR THE YEARS 07-08. P3: COPY OF THE ADJOURNMENT REQUEST DATED 16/02/2011 FILED BY THE PETITIONERBEFORE 1ST RESPONDENT FOR THE YEAR 07-08. P4: COPY OF THE SAID REPLY DATED 07/03/2011 FILED BY THE PETITIONER BEFORE 1ST RESPONDENT FOR THE YEAR 07-08. P5: COPY OF THE ASSESSMENT ORDER NO.32081065244/07-08 DATED 03/03/2011 ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER FOR THE YEARS 07-08. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs C.K.ABDUL REHIM, J. ------------------------------- W.P.(C).No.8202 of 2011 ------------------------------- Dated this the 21st day of June, 2011. J U D G M E N T Petitioner is challenging assessment finalised against him through Ext.P5 order, for the year 2007-08, under Section 25(1) of the Kerala Value Added Tax Act 2003 (KVAT Act). The order of assessment is challenged without resorting to statutory remedy of appeal provided, on the basis of a specific contention that the order in question was issued in violation of mandatory procedure prescribed under the relevant provisions and also in violation of principles of natural justice. 2. According to the petitioner, before finalising the assessment, a proposal notice was issued as evidenced from Ext.P2. It is stated that the said notice was received by the petitioner on 8.2.2011 and the requirement in the said notice was to file objections if any within 7 days of the receipt of the said notice. It is stated that the petitioner had filed an application seeking adjournment for a period of three weeks 2 W.P.(C).No.8202 of 2011 to file detailed reply. Ext.P3 is the copy of the said application, which is seen dated as 16.2.2011. According to the petitioner, thereafter he had submitted objections, as evidenced from Ext.P4, on 7.3.2011. But two days thereafter (on 9.3.2011), copy of Ext.P5 order of assessment was served on the petitioner, which is seen dated as 3.3.2011. Contention of the petitioner is that the adjournment application submitted on 16.2.2011 was accepted by the 1st respondent and the three weeks time allowed will expire only on 9.3.2011. Therefore, the petitioner had submitted the objections within the time allowed. It is contended that the assessment was finalised without considering the objections, putting a pre-date thereon. 3. Heard ; learned Government Pleader appearing for the respondents. It is contended that the assessment was finalised after affording reasonable opportunity to the petitioner to submit objections. Since the petitioner had failed to submit any objections, the assessing authority had finalised the assessment on a best judgment basis. There is 3 W.P.(C).No.8202 of 2011 no violation of any of the mandatory procedure prescribed, nor there is any violation of principles of natural justice, is the contention. 4. On a perusal of Ext.P5 it is evident that, the assessing authority had admitted that the proposal notice was served on 8.2.2011 and that the petitioner had submitted a letter seeking time of three weeks for filing reply. But it is not discernible as to whether the assessing authority had permitted such time or not. However, it is seen that the assessment was finalised observing that no reply was filed till the date of passing of the order. If the assessee had submitted any request seeking time for filing objections, the assessing authority is at an obligation either to allow it or to reject it. Once it is admitted that the adjournment application was received, it is not justified on the part of the assessing authority to finalise the assessment, without considering such application and without rejecting the same. In the case at hand it is evident that, the assessment was finalised without considering the 4 W.P.(C).No.8202 of 2011 objections raised by the petitioner. Contention of the petitioner is that, he was under a reasonable belief that he has got time till three weeks from the date of submission of the adjournment application. 5. Considering the facts and circumstances, I am of the view that, interest of justice will be served if the 1st respondent is directed to consider the objection and to finalise the assessment afresh, after affording an opportunity of hearing to the petitioner. 6. Therefore, the writ petition is allowed and Ext.P5 order is hereby quashed. The 1st respondent is directed to consider Ext.P4 objections submitted by the petitioner and to finalise the assessment afresh, after taking note of the contentions raised therein, and after affording an opportunity of personal hearing. Needless to say that, the petitioner shall also be provided with adequate opportunity to produce documents and books of accounts in support of the contentions raised. 7. Fresh orders in this regard shall be issued by the 5 W.P.(C).No.8202 of 2011 1st respondent, as early as possible, at any rate within a period of one month from the date of receipt of a copy of this judgment. C.K.ABDUL REHIM, Judge ami/