IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 22ND JANUARY 2010 / 2ND MAGHA 1931 WP(C).No. 549 of 2010(P) ------------------------ PETITIONER(S): --------------- M/S.PRESTIGE ESTATES PROJECTS LTD., NO.32, BAY PRIDE MALL, MARINE DRIVE, ERNAKULAM, KOCHI-31, REPRESENTED BY THANKACHAN THOMAS V., HEAD-BUSINESS OPERATIONS-KERALA. BY ADV. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON SRI.MAHESH V.MENON RESPONDENT(S): --------------- 1. COMMERCIAL TAX OFFICER (WC), OFFICE OF THE DEPUTY COMMISSIONER, COMMERCIAL TAXES, ERNAKULAM, KOCHI-15. 2. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMACHANDRA MENON, J. ------------------------- W.P (C) No.549 of 2010 -------------------------- Dated this the 22nd January, 2010 J U D G M E N T The petitioner is challenging Ext.P10 order passed by the 1st respondent fixing huge liability upon the petitioner, which according to the petitioner, is not correct or sustainable either on facts or in law. The very basis f the assessment is subjected to challenge referring to the decision rendered by the Apex Court in State of Andhra Pradesh Vs. Larsen and Toubro [ (2008 ) 17 VST 1]. 2. It is the case of the petitioner that the objection raised by the petitioner in response to the reassessment of notice as borne by Ext.P9 was not considered or discussed anywhere in Ext.P10, though a passing reference has been made at page 5 (immediately after showing the balance due as Rs.1,04,67,779/-). Reliance is also placed on para 5 of the decision rendered by the Division Bench of this Court in Builders Association of India & Others Vs. Union of India & Others [(1989) 73 STC 370], contending that the opportunity of hearing is not to be made an empty formality. W.P (C) No.549 of 2010 2 3. Learned Government Pleader appearing for the respondents submits that all the contentions raised by the petitioner have been taken note of before passing Ext.P10. With specific reference to the contents of the statement filed on behalf of the 1st respondent, it is stated that, as per Rule 11 (4) of the KVAT Rules 2005, exemption can be claimed by the principal contractor only on filing valid Form 20H issued by the sub contractor, duly certified by their assessing authority and further that any claim for exemption without supporting documentary evidence is liable to be rejected and would attract tax liability under Section 5 (1) or Section 8 of the KVAT Act. It is also stated that the reliance placed by the petitioner on the decision rendered in State of Andhra Pradesh Vs. Larsen and Toubro [(2008) 17 VST 1] is quite wrong and misconceived and not applicable to the case in hand. 4. Learned counsel for the petitioner submits that the statement filed by the 1st respondent does not reflect the actual facts and figures. Learned counsel also submits that Ext.P9 objection has been admittedly received by the W.P (C) No.549 of 2010 3 1st respondent as referred to at page 5 of Ext.P10 order. But obviously, Ext.P9 objection is dated 2.5.2009 and the impugned order Ext.P10 has been passed by the 1st respondent on the very same day. Absolutely no whisper is there in Ext.P10 as to the contents of Ext.P9 objection dated 2.5.2009. This being the position, Ext.P9 objection was subjected to analysis by the 1st respondent. It is settled law that the impugned order cannot be improvised by supplying more materials in the counter affidavit/ statement as the case may be. This Court finds it difficult to sustain Ext.P10 and it cannot but be held that the petitioner has not been given effective opportunity of hearing before the proceedings were finalized by the 1st respondent. 4. In the above circumstances, Ext.P10 order impugned in the writ petition is set aside and the 1st respondent is directed to consider the matter including Ext.P9 afresh, in accordance with law, after giving an effective opportunity of hearing to the petitioner. This exercise shall be finalized as expeditiously as possible, at W.P (C) No.549 of 2010 4 any rate, within a period of one month from the date of receipt of a copy of this judgment. Writ petition is disposed of as above. P.R.RAMACHANDRA MENON, JUDGE ma W.P (C) No.549 of 2010 5