IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 1ST DECEMBER 2010 / 10TH AGRAHAYANA 1932 WP(C).No. 35044 of 2010(E) -------------------------------------- PETITIONER: ------------------- SMITHA PRASANTH,M K P MARKETING NET, VANCHIYOOR, THIRUVANANTHAPURAM -695 035. BY ADVS. SRI.S.ANIL KUMAR (TRIVANDRUM), SRI.K.S.HARIHARAN NAIR, SRI.K.UMAMAHESWAR. RESPONDENT: ---------------------- THE COMMERCIAL TAX OFFICER, 3RD CIRCLE, VASANTHAM TOWERS, PEROORKADA, THIRUVANANTHAPURAM- 695 005. BY GOVT. PLEADER SRI. C.K. GOVINDAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/12/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.35044 of 2010 ------------------------------------------- Dated this the 1st day of December, 2010 J U D G M E N T ---------------------- Challenge in this writ petition is against Ext.P3 order of assessment completed under the provisions of Section 25(1) of the Kerala Value Added Tax Act, 2003 (KVAT Act). The assessment pertains to the year 2007-08. Normally this court may not be inclined to entertain any challenge against an order of assessment in view of availability of an effective alternate remedy under the statute. But learned counsel for the petitioner points out that, the order of assessment was finalised in flagrant violation of the mandatory procedure contemplated under the relevant provision and also in violation of principles of natural justice. 2. It is contended that after filing objections to the proposal notice the petitioner was not afforded with W.P.(C).35044/10 -2- an opportunity of personal hearing. On a perusal of Ext.P3 it is evident that the assessing authority had considered the objections. But nothing is reflected in the order to the effect that an opportunity of hearing was afforded, after filing of the objections, nor the order reveals about any personal hearing conducted. 3. Learned Government Pleader appearing on behalf of the respondents submitted that, as per the instructions received, the respondent had conducted a personal hearing at the time when the objections were filed. But it is clear that, the opportunity for personal hearing contemplated under the statute is to be afforded at the time of finalisation of the assessment. It is settled law by this time through the decision of this court in Suzion Infrastructure Service Ltd. Vs. C.T.O. (2010 (3) KHC 299) that, affording of an opportunity of personal hearing after submission of objections, is not an empty formality and any violation in affording such opportunity will vitiate the assessment. 4. Under the above circumstances I am of the W.P.(C).35044/10 -3- considered opinion that the order of assessment impugned is not sustainable in the eye of law and there is deficiency in compliance of proper procedure contemplated under the statute and also there is violation of the principles of natural justice. 5. In the result the writ petition is allowed. Ext.P3 order is hereby quashed. The respondent is directed to finalise the assessment afresh, after affording a reasonable opportunity of hearing to the petitioner. Needless to say that the petitioner will be at liberty to produce documents or Books of Accounts in support of objections. 6. Fresh orders in this regard shall be issued 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