IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 21ST JANUARY 2009 / 1ST MAGHA 1930 WP(C).No. 1764 of 2009(I) ------------------------------------------- PETITIONER(S): --------------------- M/S.ACCEL TRANSMATICS LTD., REGD.OFFICE 17/27, JAGATHY, THIRUVANANTHAPURAM 695 014 REPRESENTED BY DIRECTOR SHRI.T.RAVINDRAN. BY ADV. SRI.T.M.SREEDHARAN SRI.V.P.NARAYANAN RESPONDENT(S): ------------------------- 1. THE INTELLIGENCE OFFICER (IB) COMMERCIAL TAXES, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. 3. THE DEPUTY COMMISSIONER (APPEALS) COMMERCIAL TAXES, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SHRI C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 1764 OF 2009 I -------------------------------------- Dated this the 21st January, 2009 JUDGMENT Petitioner was served with penalty orders. Against the same, petitioner preferred Revision Petitions under Section 45A (3) of the KGST Act, 1963 (hereafter referred to as the Act). The Revision Petitions were allowed by Exts.P1 and P2. By Ext.P1, the order of penalty imposed under Section 45A of the Act for the assessment years 2000 - 2001 to 2003 - 2004 was set aside and by Ext.P2, the order of penalty imposed was modified. It was while so that the petitioner was issued with Ext.P3 and P4 notices by the second respondent, Commissioner of Commercial Taxes under Section 37 of the Act. Petitioner challenges Exts.P3 and P4 notices as without jurisdiction. The question raised is as follows: According to petitioner, there is an amendment of the law with effect from 1.4.2008. Thereunder, against the order of penalty under Section 45A, a right of appeal is created. The WPC.1764/09 I 2 Revision Petitions were filed prior to 1.4.2008 culminating in Exts.P1 and P2. Therefore, it is the contention of the learned counsel for the petitioner that the Revision Petitions which were filed by the petitioner should be treated as Appeals under Section 34 of the Act and against Exts.P1 and P2 orders the remedy of the respondents was to file Appeals to the Appellate Tribunal under Section 39 of the Act. No doubt, I notice that there is a further Revision under Section 45A(5). Section 45A (5) provides for a Revision against an order passed in a Revision under Section 45(A)(3) by the Deputy Commissioner. I feel that the petitioner should be permitted to raise all the objections raised against Exts.P3 and P4 before the second respondent Commissioner including that of jurisdiction. Petitioner has also a complaint that the Officer appears to have pre-judged the issue. It is a notice purported to be issued under Section 37 of the Act. Any conclusion which the Officer may have arrived at can only be treated as purely tentative and the Officer is duty bound to have an open mind and to consider the objections WPC.1764/09 I 3 raised by the petitioner. Accordingly, the Writ Petition is disposed of relegating the petitioner to raise all the objections before the second respondent Commissioner who issued Exts.P3 and P4, including that there is no right of Revision available under Section 37 of the Act against Exts.P1 and P2 orders as they are to be treated as orders passed under Section 34 of the Act which are appealable under Section 39 of the Act. If the petitioner raises objection relating to jurisdiction, the second respondent Commissioner will apply his mind to the objections and pass a reasoned order giving reasons as to how he deals with the objections. Sd/= K. M. JOSEPH, JUDGE kbk. // True Copy // PS to Judge