IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 15TH JUNE 2011 / 25TH JYAISHTA 1933 WP(C).No. 13870 of 2011(G) ---------------------------------- PETITIONER(S): ------------------- CITI NETWORK, ABNA COMPLEX, OPP.SREEPURAM ROAD, PALLIKKUNNU P.O., KANNUR-670 004, REPRESENTED BY ITS SECRETARY A.P.SREEJITH. BY ADVS. SRI.S.ANIL KUMAR (TRIVANDRUM) SRI.K.S.HARIHARAN NAIR RESPONDENT(S): -------------------- 1. COMMERCIAL TAX OFFICER (LUXURY TAX) COMMERCIAL TAXES, KANNUR-670 002. 2. THE DY.COMMISSIONER, COMMERCIAL TAXES, KANNUR-670 002. BY GOVT.PLEADER SRI.BIJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO.13870/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF NOTICE DATED 10/03/2011 ISSUED BY THE 1ST RESPONDENT. P2: COPY OF LETTER DATED 22/03/2011 SEEKING TIME. P3: COPY OF REPLY DATED 22/03/2011. P4: COPY OF ORDER DATED 21/03/2011 OF THE 1ST RESPONDENT. P5: COPY OF LETTER DATED 24/03/2011 ADDRESSED TO THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.13870 of 2011-G ---------------------------------------- Dated this the 15th day of June, 2011. J U D G M E N T Ext.P4 order of assessment finalised under Section 6(2) of the Kerala Taxes on Luxuries Act 1976, is under challenge in this writ petitioner. The petitioner is approaching this Court without resorting to statutory remedy of appeal, on the basis of specific contention that the assessment was finalised without affording any reasonable opportunity to the petitioner to file objections against the proposal notice and without affording any opportunity of personal hearing. 2. Contention of the petitioner is that a proposal notice, Ext.P1, was served on the petitioner on 14.3.2011. In the proposal notice opportunity was given to raise objections if any within seven days of receipt of the notice. But before the petitioner could file objections against the proposal, the assessment was completed and orders were issued on 21.3.2011, which is the seventh day after receipt W.P(C) No.13870 of 2011-G 2 of Ext.P1 notice. According to the petitioner he had submitted Ext.P3 reply which is dt.22.3.2011. But the same was not accepted since the order was finalised on the previous day itself. It is contended that Ext.P4 order was issued in a cryptic manner confirming the proposal, merely observing that the petitioner had failed to file any reply to the proposal notice. Under such circumstances, contention of the petitioner is that, the impugned order was issued in violation of the procedure prescribed under the relevant statute and in violation of principles of natural justice. 3. Learned Government Pleader, on the other hand, contended that there was gross negligence on the part of the petitioner in co-operating with finalisation of the assessment. It is stated that, even prior to Ext.P1 proposal, notice was issued to the petitioner calling for production of books of accounts. But the petitioner had failed to produce any books of accounts as required. It is further contended that in Ext.P1, the petitioner was given seven days time to file objections as well as he was required to appear before W.P(C) No.13870 of 2011-G 3 the assessing authority on 19.3.2011 at 11.AM for personal hearing. Since the asessee had failed in submitting any objections within seven days and also failed in appearing for the personal hearing posted on 19.3.2011, the authority was justified in finalising the assessment, is the contention. 4. Going by the contents of Ext.P4, it is evident that the assessment was seen finalised on an ex-parte basis. According to the petitioner he is not liable for payment of the amount of luxury tax demanded and in the objections submitted as per Ext.P3 the petitioner had narrated detailed contentions refuting such liability. Since the impugned order was issued in a hasty manner, the petitioner was deprived of effective opportunity to content against sustainability of the impugned assessment and also denied of opportunity to object proposal for finalising such assessment, is the contention. 5. Considering the rival contentions as stated above, I am of the view that the assessing authority could not be blamed in passing Ext.P4 order on the seventh day after W.P(C) No.13870 of 2011-G 4 receipt of the notice by the assessee. This is especially because of the fact that there was failure on the part of the assessee in producing books of accounts on an earlier occasion. However, since it is evident that the petitioner is raising very serious disputes regarding liability and since it is evident that the assessment order was issued on the seventh day after receipt of the notice by the petitioner, I am of the view that interest of justice will be served if the petitioner is afforded with a further opportunity to raise the contentions. 6. Under the above mentioned circumstances, the writ petition is allowed and Ext.P4 order is hereby quashed. The 1st respondent is directed to finalise the assessment afresh, after taking into consideration of the objections which will be raised by the petitioner and after affording an opportunity of personal hearing to him. The petitioner is directed to forward Ext.P3 objections to the 1st respondent within a period of one week from the date of receipt of a copy of this judgment. If such objection is received, the 1st W.P(C) No.13870 of 2011-G 5 respondent shall consider the same and dispose of the matter 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 Ext.P3 objections. 7. Needless to say that, the petitioner shall be afforded an opportunity to produce books of accounts and other documents in support of the objections raised. C.K.ABDUL REHIM JUDGE ab