IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 25TH JANUARY 2008 / 5TH MAGHA 1929 OP.No. 880 of 2002(D) ------------------------------- PETITIONER: ------------------- SANKARAPANICKER MEMORIAL TRUST, REPRESENTED BY ITS PRESIDENT, ANAYADI KANNIMEL, OACHIRA, S.SURENDRAN. BY ADV. SRI.P.R.VENKATESH. RESPONDENTS: ------------------------ 1. THE DY.COMMISSIONER (GENERAL), COMMERCIAL TAXES, THIRUVANANTHAPURAM. 2. THE ADDL.SALES TAX OFFICER-II, KARUNAGAPPALLY. 3. THE DY. TAHSILDAR (R.R), KARUNAGAPPALLY. BY GOVT. PLEADER (TAXES) SRI. V. TEKCHAND. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 25/01/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P. NO. 1380/2002 IN O.P. NO. 880/2002-D DISMISSED 25/01/2008. SD/- P.N.RAVINDRAN, JUDGE. APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE APPELLATE ORDER PASSED BY THE APPELLATE ASST. COMMISSIONER DT. 29/09/1997. EXT.P.2: COPY OF THE REPRESENTATION SUBMITTED BEFORE THE R.1. DTD. NIL. EXT.P.3: COPY OF THE FRESH ORDER OF ASSESSMENT PASSED BY THE ASSESSING AUTHORITY DT. 15/02/2001. EXT.P.4: COPY OF THE REPRESENTATION SUBMITTED BEFORE R.1. DT. 15/03/2001. EXT.P.5: COPY OF THE REVENUE RECOVERY NOTICE ISSUED BY THE R.3. ON 28/12/2001. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. P.N. RAVINDRAN, J. --------------------------------------------------------------- O.P.NO.880 OF 2002 -------------------------------------------------------------- Dated this the 25th day of January, 2008. JUDGMENT The petitioner is an assessee under the Kerala General Sales Tax Act, 1963, herein after referred to as the “Act” for short. By order passed on 22.1.1997, the second respondent determined the tax and surcharge payable by the petitioner for the assessment year 1990-91. The petitioner carried the matter in appeal. The appellate authority namely, the Additional Appellate Assistant Commissioner, Kollam by Ext.P1 order dated 29.9.1997 set aside the assessment order dated 22.1.1997 and directed the 2nd respondent, the assessing authority, to pass a fresh assessment order in accordance with law. The appellate authority had while passing Ext.P1 noticed that the rejection of the return filed and the books of accounts produced by the assessee was fully justified. However, the appellate authority remanded the matter to the assessing authority for the limited purpose of considering the claim for sales tax exemption on the sale of aluminium vessels. 2. Pursuant to Ext.P1 order passed by the appellate authority, the OP.NO.880/2002 . 2 2nd respondent issued a notice dated 23.12.2000 calling upon the petitioner to produce the books of account for verification. The petitioner thereupon submitted a reply as well as the representation dated 4.1.2001 evidenced by Ext.P2, requesting that assessment may be made in terms of Section 17(4) of the Act. The petitioner submits that along with Ext.P2, the annual return in Form 9 along with the statement in Form 21 CC as required under Rule 18 A(1A) of the Kerala General Sales Tax Rules, 1963 (hereinafter referred to as the rules) was also filed. The 2nd respondent thereafter passed Ext.P3 assessment order dated 15.2.2001 determining the tax and surcharge payable by the petitioner. The petitioner has in this original petition challenged Ext.P3 and prayed for a writ in the nature of mandamus commanding the 2nd respondent to pass a fresh order of assessment for the assessment year 1990-91 in accordance with Section 17(4) of the Act. The petitioner has also challenged Ext.P5 notice of demand issued by the 3rd respondent, Deputy Tahsildar under Section 7 of the Kerala Revenue Recovery Act, 1968 demanding payment of the tax assessed under Ext.P3. 3. I have heard Sri. P.R.Venkitesh the learned counsel appearing OP.NO.880/2002 . 3 for the petitioner and Sri.V. Tekchand the learned Government Pleader appearing for the respondents. The learned counsel for the petitioner submitted that the 2nd respondent was bound to make an order of assessment in terms of Sub section (4) of Section 17 of the Act when the assessee opts to be governed by that subsection. The learned counsel further submitted that shorty after Ext.P1 order was passed, he had submitted Ext.P2 representation and filed the annual return in Form 9 and statement in Form 21 CC as required under Rule 18 A (1A) of the rules and hence, assessing authority was bound to pass an assessment order under Section 17 (4) of the Act. The learned counsel for the petitioner submits that Ext.P3 is liable to be invalidated on that short ground and the matter remitted to the assessing authority for fresh determination. The learned Government pleader appearing for the respondents on the other hand submitted that the assessing authority is bound by the terms of the remand order evidenced by Ext.P1 and that the petitioner is not entitled to seek an assessment under Section 17 (4) of the Act. The learned Government pleader brought to my notice Rule 18A(1A) of the rules which stipulates that every dealer who is entitled to an assessment under sub-section (4) of Section 17 of the Act shall furnish the annual return in Form 9 OP.NO.880/2002 . 4 along with statement in Form 21 CC on or before the first day of May of the year succeeding year to which it relates with proof of payment of the full amount of tax due or the tax collected by him whichever is higher, along with the documents specified under that rule for the claim of exemption. The tax due or collected, whichever is higher during any quarter of the year shall be paid by such dealer on or before 15th of the succeeding month to the first three quarters, and for the fourth quarter, before the end of the quarter. The learned Government Pleader further submitted that the petitioner ought to have furnished the annual return in Form 9 along with the statement in Form 21 CC on or before the 1st day of May 1991 since the assessment year in question is 1990-91 and that as the petitioner has not complied with that requirement in time, he cannot seek to be assessed under sub Section (4) of Section 17 of the Act. The learned Government Pleader further submitted that Ext.P3 is an appealable order and that an appeal lies under Section 34 of the Act to the Deputy Commissioner, Appeals. 4. I have considered the rival contentions. After hearing the learned counsel for the petitioner and the learned Government Pleader appearing for the respondents, I am of the opinion that OP.NO.880/2002 . 5 the petitioner is not entitled to any relief in this original petition. Firstly Ext.P3 is an appealable order. An appeal lies under Section 34 of the Act to the Deputy Commissioner, Appeals. Hence on that short ground itself this original petition is liable to be dismissed. 5. Further, as rightly pointed out by the learned Government Pleader appearing for the respondents an assessee opting for being assessed under sub-section (4) of Section 17 of the Act has to comply with the requirements of Rule 18 A(1A) of the rules and furnish the annual return in Form 9 along with the statement in form 21 CC on or before the first day of May of the year succeeding the year to which it relates. The assessment year in the case on hand is 1990-91. On the terms of Rule 18A (1A), the petitioner ought to have filed the annual return in Form 9 along with the Statement in Form 21 CC on the 1st of May, 1991. It is admitted by the petitioner that the petitioner furnished the annual return in Form 9 along with the statement in Form 21 CC only on 4.1.2001. In the light of the stipulations in Rule 18A (1A) of the rules, the petitioner cannot therefore claim to be assessed under sub-section (4) of Section 17 of the Act. It is trite law that if a statute prescribes a particular thing to be done in a particular manner, OP.NO.880/2002 . 6 it shall be done in that manner or not at all. I am of the opinion that as the petitioner has not complied with the requirements of Rule 18A (1A), the petitioner is not entitled to be assessed under Section 17 (4) of the Act for the year 1990-91. 6. Further by Ext.P1, the Appellate Assistant Commissioner had remanded the matter to the assessing authority with a direction that the accounts should be re-examined. The assessing authority is bound by the order of remand and hence the petitioner cannot take exemption to the rejection of his request in Ext.P2 when Ext.P3 assessment order was passed. For the reasons stated above, I hold that there is no merit in the original petition and that it is liable to be dismissed. I do so. However, in the circumstances of the case I make no order as to costs. P.N. RAVINDRAN, JUDGE. cl OP.NO.880/2002 . 7 P.N. RAVINDRAN, J. O.P.NO.880 OF 2002 JUDGMENT 25th January, 2008. OP.NO.880/2002 . 8