IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 4TH FEBRUARY 2011 / 15TH MAGHA 1932 WP(C).No. 1973 of 2011(V) ------------------------------------ PETITIONER(S): ------------------------ M/S.KAIRALI GRANITES N.H.BYE PASS, VYTILLA, KOCHI REPRESENTED BY ITS PROPRIETOR, MR.V.R. NARAYANAN EMBRAN. BY ADV. SRI.K.SRIKUMAR, SRI.K.MANOJ CHANDRAN. RESPONDENT(S): ------------------------- 1. THE COMMISSIONER OF COMMERCIAL TAXES THIRUVANANTHAPURAM- 695 001. 2. THE DEPUTY COMMISSIONER (APPEALS) DEPT. OF COMMERCIAL TAXES, ERNAKULAM- 682 015. 3. THE INTELLIGENCE OFFICER, SQUAD NO.IV DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM- 682 015. 4. THE ASST. COMMISSIONER (ASSESSMENT) DEPT. OF COMMERCIAL TAXES, SPECIAL CIRCLE- III, ERNAKULAM- 682 015. 5. THE ASST. COMMISSIONER (AUDIT ASSESSMENT) DEPT. OF COMMERCIAL TAXES, SPECIAL CIRCLE- III, ERNAKULAM- 682 015. R1 TO R5 BY GOVT. PLEADER MR.C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.1973 of 2011 ------------------------------------------- Dated this the 4th day of February, 2011 J U D G M E N T ---------------------- Petitioner is challenging Ext.P1 notice issued proposing finalisation of assessment under Section 25(1) of the Kerala Value Added Tax Act, 2003 (KVAT Act), with respect to the year 2005-'06. Ext.P1, being only a proposal for finalisation of penalty, could not be interfered with in normal circumstances. It is stated that the petitioner had submitted Ext.P5 and P6 objections to Ext.P1 notice. 2. The main contentions raised is that, the assessment proposed is based on 3 distinct proceedings initiated under Section 47(2) of the KVAT Act, which were initiated pursuant to interception of transport of goods effected by the petitioner. It is pointed out that through Ext.P3 order the petitioner was permitted to compound one of such proceedings, under Section 17(4) of the KVAT Act. But it is noticed that against Ext.P3 an appeal filed by the petitioner, as per Ext.P4, is pending consideration and disposal before the 2nd respondent. With respect to two other proceedings initiated under Section 47(2), enquiry contemplated under Section 47(5) has not yet been finalised. Therefore the petitioner inter alia seeks for a direction for early disposal of Ext.P4 appeal as well as for finalisation of W.P.(C).1973/11 -2- the proceedings initiated under Section 47(2). On such premise, the petitioner is also seeking direction to defer finalisation of the assessment initiated pursuant to Ext.P1 proposal notice. 3. In a statement filed on behalf of the 4th respondent it is specifically contended that the proceedings under Section 47 was initiated on the basis of clear evidence that the petitioner had suppressed turnover with respect to the goods under transport. It is stated that the security deposit was demanded, only after conducting physical measurement of the quantity of goods and only after being convinced that there was difference in the actual quantity under transport, when compared with the documents which accompanied with the transport. It is further contended that there is no justification in seeking deferment of the assessment proceedings, because the petitioner can raise all contentions before the assessing authority. It is also pointed out that the assessment if not completed before 31.3.2011, the same will get time barred. 4. Considering the rival contentions, I am of the view that it is not necessary for this court to enter upon any adjudication on the dispute. It is evident that the assessment was proposed mainly based on the proceedings initiated under Section 47. I am of the view that before completing the assessment, a direction can be issued to the appropriate W.P.(C).1973/11 -3- authority to finalise the enquiry pending under Section 47 of the KVAT Act. 5. Therefore, the writ petition is disposed of directing the 2nd respondent to consider and dispose of Ext.P4 appeal after affording an opportunity of hearing to the petitioner, as early as possible, at any rate within a period of one month from the date of receipt of a copy of this judgment. The 3rd respondent is also directed to finalise the enquiry initiated based on O.R.No.1150- A/2005-06 and O.R.No.1151-A/2005-06, after affording an opportunity of hearing to the petitioner, at the earliest possible, at any rate within a period of one month from the date of receipt of a copy of this judgment. 6. With respect to Ext.P1 it is made clear that the assessing authority will be free to proceed with finalisation of the assessment on the basis of Ext.P5 and P6. However, passing of final order shall be kept in abeyance, awaiting disposal of Ext.P4 appeal as well as finalisation of the enquiry to be conducted by the 3rd respondent, as directed above. 7. Needless to say that before finalising the assessment sufficient opportunity of personal hearing shall be afforded to the petitioner. C.K.ABDUL REHIM, JUDGE. okb