IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 7TH AUGUST 2009 / 16TH SRAVANA 1931 WP(C).No. 19898 of 2009(F) -------------------------- PETITIONER: --------------- RCM EYE HOSPITAL, TRIPUNITHURA, REPRESENTED BY THE MANAGING PARTNER, DR. RAKESH. BY ADV. MR. M.V.THAMBAN MR. R.REJI RESPONDENTS: --------------- 1. COMMERCIAL TAX OFFICER (KVAT), IST CIRCLE, TRIPUNITHURA. 2. INTELLIGENCE OFFICER (IB), MATTANCHERY AT EDAPPALLY. 3. STATE OF KERALA, REP. BY THE SECRETARY, TO THE GOVERNMENT, DEPARTMENT OF TAXES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER MR. C. K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P. (C) No. 19898 of 2009 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 7th day of August, 2009 JUDGMENT The petitioner is challenging Exts.P6, P6(a) and P6(b) assessment orders passed by the first respondent, allegedly without giving an effective opportunity of hearing. The case of the petitioner is that, the petitioner, in response to the notice issued for the assessment years 2005 – '06, 2006 – '07 and 2007 – '08 had produced the 'books of accounts' on 27.3.2008, but could not produce the requisite bills, which actually were in the custody of the auditors. Taking note of the facts and circumstances, to avoid the prosecution, compounding application was filed on 31.3.2008, which was effected and the requisite amount was remitted accordingly. But the compounding order dated 3.8.2009, as borne by Ext.P2, was prior to the production of the books of accounts. 2. Subsequently, on issuance of notices under Section 22 (3) on 27.2.2009, proposing assessment on the best judgment basis as borne by Exts. P3, P3(a) and P3(b), the petitioner submitted Ext.P4 application dated 13.3.09, requesting the authorities concerned to adjourn the hearing to another date convenient to the said authority, though the same was not made known to the petitioner any time thereafter. Subsequently the first respondent passed Ext.P6 order WP (C) No. 19898 of 2009 : 2 : behind the petitioner, allegedly giving a prior date as 13.4.2009, which however was served upon the petitioner only on 24.6.2009. The case of the petitioner is that, the finalization of the proceedings without giving effective opportunity of hearing to the petitioner has resulted in total miscarriage of justice and hence is under challenge. 3. The respondent has filed a statement, where virtually no dispute is raised as to the dates and proceedings as referred to by the petitioner, but for stating that, pursuant to Ext.P4 request made by the petitioner, “two weeks” time was given for hearing and also for filing reply, if any, which opportunity however was not availed of by the petitioner. Ext. P6 does not disclose any specific date. to which the case was adjourned, pursuant to Ext.P4 request made by the petitioner. 4. The learned Government Pleader submits that no such specific date was given, as there is no such practice or procedure and that assessee was very much entitled to have the relevant 'books of accounts' produced any time during the extended period. This Court finds it difficult to accept the above proposition, particularly since in a case where the assessee wants to substantiate the position, based on the admitted facts and figures or if wants to project merely the relevant provisions of law by way of hearing (probably without any dispute regarding the facts and figures), unless and until the specific date of hearing is notified to him, it cannot be availed of. In any view of the WP (C) No. 19898 of 2009 : 3 : matter, the case projected by the petitioner appears to be more probable and hence this Court is inclined to hold that no effective opportunity has been given to the petitioner to substantiate his case. 5. In the above facts and circumstances, Ext.P6 series orders passed by the first respondent are set aside. The first respondent is directed to consider the matter afresh; after giving a notice of hearing to the petitioner and final orders shall be passed as expeditiously as possible, at any rate within one month from the date of receipt of a copy of this judgment. The Writ Petition is allowed as above. No cost. P. R. RAMACHANDRA MENON, JUDGE kmd