IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH MONDAY, THE 28TH JULY 2008 / 6TH SRAVANA 1930 WP(C).No. 33519 of 2007(M) -------------------------- PETITIONER: ------------ JIMMY JOSE, PROPRIETOR, M/S.FREEZE FAST, 3/141C, V.K.V.LANE, CHEMBUMUKKU, KAKKANAD, ERNAKULAM DISTRICT. BY ADV. SRI.BOBBY JOHN SRI.TOMSON T.EMMANUEL RESPONDENTS: ------------- THE COMMERCIAL TAX OFFICER, IIIRD CIRCLE, ERNAKULAM. BY GOVERNMENT PLEADER SRI.C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH, J. ```````````````````````````````````````````````````` W.P.(C) No. 33519 OF 2007 M ```````````````````````````````````````````````````` Dated this the 28th day of July, 2008 J U D G M E N T Petitioner challenges Exts.P3 and P7. Ext.P3 is the assessment order dated 30.9.2006 for the year 2002-03. Ext.P7 is the assessment order under the KGST Act for the year 2003-04. 2. I heard learned counsel for the petitioner and learned Government Pleader. Learned counsel for the petitioner, Sri.Bobby John, would submit that as far as Ext.P7 is concerned, it is bad in law. His contention is that assessment is completed under section 17(2) of the KGST Act. His complaint is that the procedure adopted by the assessing authority is erroneous. If the assessment is completed under section 17(2) of the Act, the assessing authority should have found that the petitioner is entitled to exemption and no tax is payable and there can be no demand for interest, he contends. According to him, in the return the petitioner has claimed exemption and also that the entire amount has been paid. If the assessing authority was of the opinion that the claim in the return was not correct, the only remedy available WPC.33519/07 : 2 : to him was to resort section 17(3) to issue an assessment order after affording an opportunity to the petitioner. Counter affidavit and reply affidavit have been filed. Learned Government Pleader would point out the averments contained in paragraphs 3 and 5 of the reply affidavit. In paragraph 5, it is stated, inter alia, that the petitioner had claimed exemption from tax available to SSI unit in anticipation of favourable appellate order. It is also stated that it was in vain. 3. The assessing authority has taken the total and taxable turnover as Rs.40,88,755/-. Exemption was denied. No doubt, the assessing authority has not issued any notice. But, considering the facts of this case, I see no merit. For the previous assessment year, the petitioner was denied exemption by the assessing authority. Aggrieved by that, the petitioner has filed appeal, which was also not favourable to the petitioner. It is very clear from the averments in paragraph 5 of the reply affidavit. It is not in dispute that the appeal was not favaourable to the petitioner. Without the aid of appellate order in favour of the petitioner, the assessing authority could not have taken a different view in the instant assessment year in respect of exemption, WPC.33519/07 : 3 : having regard to the order passed in the previous year about nonavailability of exemption. In such circumstances, there is no merit in the contention of the petitioner based on section 17(3) of the Act and accordingly this writ petition fails and it is dismissed. This will be without prejudice to the right of the petitioner to seek the benefits of the Amnesty Scheme available under law. Sd/- (K.M.JOSEPH, JUDGE) aks /TRUE COPY/ P.A.TO JUDGE