IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 10TH JUNE 2011 / 20TH JYAISHTA 1933 WA.No. 811 of 2010() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.1955/2009 Dated 17/03/2010 .................... APPELLANT(S): PETITIONERS ------------------------- 1. JIMMY JOSE, RESIDING AT G245, PANAMPILLY NAGAR, KOCHI-682 036. 2. BOBBY JOSE, RESIDING AT G245, PANAMPILLY NAGAR, KOCHI-682 036. BY ADV. SRI.G.HARIHARAN SRI.PRAVEEN.H. RESPONDENT(S): --------------- 1. DEPUTY TAHSILDAR (RR), KANAYANNUR TALUK, ERNAKULAM-682 011. 2. VILLAGE OFFICER, ERNAKULAM VILLAGE, ERNAKULAM. 3. COMMERCIAL TAXES OFFICER, KVAT CIRCLE II, KALAMASSERY, ERNAKULAM DISTRICT. 4. M/S.STABLE MAGNET WIRE PRIVATE LTD., PLOT NO.4, COCHIN SPECIAL ECONOMIC ZONE, KOCHI-682 037. ADV. SRI.V.ABRAHAM MARKOS FOR R4 MR.JOSEPH KODIATHARA FOR R4 SRI.MATHEWS K.UTHUPPACHAN FOR R4 SRI.TERRY V.JAMES FOR R4 SRI.B.J.JOHN PRAKASH FOR R4 MR.MOHAMMED RAFEEQ, GOVERNMENT PLEADER THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10/06/2011, ALONG WITH W.A.NOS.988/2010 & 379/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. ---------------------------------- W.A. Nos.811 & 988 of 2010 & 379 of 2011 --------------------------------- Dated, this the 10th day of June, 2011 J U D G M E N T Ramachandran Nair, J. These Writ Appeals are filed by the previous and present owners of an industry that was engaged in manufacture and sale of copper wires. Assessments involved are for the years 2003-04 and 2004-05. When recovery proceedings were initiated, first writ petition (WP(C) No.1955/2009) was filed, during the pendency of which the assessments were completed. The second Writ Petition (WP(C) No.27709/2010) was also filed by the transferror challenging the assessments as well. 2. So far as W.A.No.988/2010 is concerned, the same is filed against the judgment in WP(C) No.1955/2009, by the transferree, whose case is that since the business is taken over with effect from 30/03/2007, the buyer has no liability for payment of tax for the two preceding years. The Writ Appeal W.A.Nos.811, 988/2010 & 379/2011 -2- happened to be filed by the transferee because of the observations made in the judgment by the learned Single Judge. 3. We have heard separate counsel for the two sets of appellants and learned Government Pleader for the respondents. 4. Admittedly, assessments are exparte and for that reason the assessee has chosen to challenge the assessments in writ proceedings. Learned Government Pleader defended the exparte assessment for the reason that even after service of notice the assessee refused to turn up. Even though statutory appeal is maintainable even against the exparte assessment, we feel on being convinced about the justification, if any, for non-appearance the appellate authority will only remand the matter for fresh adjudication. In the circumstances, we feel an opportunity can be granted to the assessee to participate in the assessment afresh on conditions. Therefore, considering the amount involved for the two years above referred, we dispose of these Writ Appeals with a W.A.Nos.811, 988/2010 & 379/2011 -3- direction to the appellant in W.A.No.379/2011 to deposit Rs.25,00,000/- (Rupees twenty five lakhs only) within a period of one month from now with the Assessing Officer in the proportion in which the Assessing Officer wants it for credit for the KGST and CST assessments for the above two years, provisionally. Soon after the payment is made, the Assessing Officer will give posting date for the assessee to produce books of accounts for completing the assessments in accordance with the provisions contemplated under Section 17 (3) of the KGST Act. If payment is not made within 30 days as above, Writ Appeals will be treated as dismissed against the appellant in W.A.No.379/2011 and recovery will be proceeded against them. In that event, the liability of the transferee for arrears of tax due from the transferror will be considered by the Assessing Officer in accordance with the statutory provisions after giving an opportunity of hearing to the appellant in W.A.No.988/2010 and only if the appellant is found liable, recovery will be proceeded against them that too only if recovery is not possible from the transferror. If payment is made above, then the Assessing Officer will give an W.A.Nos.811, 988/2010 & 379/2011 -4- opportunity to the transferror to produce books of accounts, verify the same and complete the assessments afresh which will substitute ex-parte assessment orders issued, after issuing pre-assessment notice and after giving sufficient opportunity to them. We make it clear that it will be open to the transferror to personally meet the Assessing Officer, take notice of posting, hearing etc. personally and appear on the posting dates before the Officer. If the transferror does not co-operate the Assessing Officer is free to make exparte assessment in accordance with law. In view of the judgment as above, the observations made by the learned Single Judge with reference to the terms of the agreement between the parties is deleted with freedom to the respondents to canvass the position in the event of necessity, as and when it arises. These Writ Appeals are disposed of as above. (C.N.RAMACHANDRAN NAIR, JUDGE) (P.S.GOPINATHAN, JUDGE) jg