IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 10TH JANUARY 2011 / 20TH POUSHA 1932 WP(C).No. 38480 of 2010(H) ---------------------- PETITIONER : --------------- TECHNOLINE SYSTEMS AND SERVICES, MUTTATHIL LANE, KADAVANTHRA, KOCHI-682 020. REP.BY ITS MANAGING PARTNER RAKESH JOSEPH. BY ADVS. SRI.S.ANIL KUMAR (TRIVANDRUM) SRI.K.S.HARIHARAN NAIR SRI.K.UMAMAHESWAR RESPONDENT : ---------------------- ASST.COMMISSIONER (ASSESSMENT), COMMERCIAL TAXES, SPECIAL CIRCLE-I, ERNAKULAM, KOCHI-682 015. BY SR. GOVT. PLEADER SRI. C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.38480 of 2010 ------------------------------------------- Dated this the 10th day of January, 2011 J U D G M E N T ---------------------- Ext.P3 order of assessment finalised under Section 25(1) of the Kerala Value Added Tax Act, 2003 (KVAT Act) is challenged in this writ petition. The order of assessment is challenged without resorting to the appellate remedy, on the ground that with respect to the finalisation of the assessment the respondent has not followed the mandatory procedure prescribed under Section 25(1). Contention is that no opportunity of hearing was afforded to the petitioner after submitting objections to the proposal. It is contended that the order impugned is violative of principles of natural justice. 2. On a perusal of Ext.P3 it is evident that a proposal in the form of pre-assessment notice was issued to the petitioner. In reply, the petitioner has submitted Ext.P2 dt.28.9.2010 admitting that there is difference between the turnover and the annual returns account. According to the petitioner, it was due to a mistake on the part of the W.P.(C).38480/10-H -2- Accountant, who had resigned from the service of the petitioner. In the objection, the petitioner had requested for taking a lenient view in the matter and to cancel the proposal for addition on the turnover. It is further stated in Ext.P3 order that the reply was considered and authorised representative of the assessee was heard. But learned counsel for petitioner submits that the authorised representative was not actually heard. But he had only personally presented Ext.P2 objection before the respondent. It is contended that at that time the respondent had promised to consider objections. 3. It is contended that if the objections were not acceptable to the authority concerned, an opportunity of personal hearing ought to have been afforded before finalisation of the assessment. In the decision of this court in Suzion Infrastructure Service Ltd. Vs. C.T.O. (2010 (3) KHC 299). It is held that the opportunity of hearing provided under Section 25(1) of the KVAT Act is not an empty formality and any non- compliance of such procedure will vitiate the order of assessment. Learned counsel for the petitioner contended that even with respect to the additions made, the authority ought to have taken a proper decision, after affording an opportunity of hearing to the petitioner. W.P.(C).38480/10-H -3- 4. I am of the view that there is violation on the part of the authority in not providing an opportunity of hearing, despite the fact that there was no much objections from the side of the petitioner with respect to the proposal on its merits, but only a specific request to take a lenient view with respect to the additions. Any how, since an opportunity of personal hearing was not seen afforded after filing of Ext.P2 objection, I am of the view that it is only just and proper to afford such an opportunity to the petitioner. 5. In the result, Ext.P3 is hereby quashed. The respondent is directed to reconsider the matter and to pass fresh orders finalising the assessment, after affording an opportunity of personal hearing to the petitioner. The needful shall be done 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. okb