IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 WP(C).No. 34918 of 2009(H) -------------------------- PETITIONER(S): --------------- SRI.P.SETHUMADHAVAN, PROP., M/S.SERVOTEX ENGINEERS, KOTTAPPURAM, THRISSUR. BY ADV. SRI.E.P.GOVINDAN RESPONDENT(S): --------------- 1. THE COMMERCIAL TAX OFFICER, THIRD CIRCLE, COMMERCIAL TAXES, THRISSUR. 2. THE STATE OF KERALA, REP. BY THE SECRETARY, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.34918 OF 2009 ------------------------------ Dated this the 4th day of December, 2009 J U D G M E N T ---------------------- 1. Ext.P1 order of assessment issued under the Central Sales Tax Act is challenged in this writ petition, without resorting to statutory remedy of appeal available to the petitioner. The challenge against Ext.P1 is mainly on the ground that adequate opportunity was not given to the petitioner before finalising the assessment. The assessment pertains to the year 2005-06. Petitioner claimed exemption with respect to the entire turnover on the ground that the sale made by him are sale in transit covered under Section 6(2) of the CST Act. But the petitioner failed to produce C-forms and E-1 declarations in order to substantiate the claim for exemption. It is stated in Ext.P1 order that the petitioner had failed to produce the required forms and declarations, inspite of notice. According to the petitioner such notices were issued as early as in May 2009 and the petitioner had in fact sought adjournment for production of the required forms, as evidenced from Ext.P3 letter. It is the case of the petitioner that further notice was not issued and the assessment was finalised behind his back. According to the W.P.(C).34918/09-H 2 petitioner, though belated, he has received all the required C- forms and E-1 declarations which are produced along with this writ petition, as Ext.P4 and P5 series. Therefore the assessment is totally unsustainable, is the contention. 2. The preliminary question to be considered is whether there is a patent lack of jurisdiction or a patent erroneous exercise of jurisdiction by the 1st respondent in finalising the assessment which warrants interference of this court, even when statutory remedy is not resorted to. Since the question regarding violation of natural justice is in dispute, I am of the opinion that it is a fit case to be taken up in appeal before the statutory appellate authority. Further more, I notice that the appellate authority is conferred with all the powers of the assessing authority and if the petitioner could produce the forms and declarations before that authority, definitely that can be taken note of by the appellate authority. Under such circumstances, I am of the opinion that the petitioner can be relegated to the appellate authority to redress his grievances. 3. Accordingly the writ petition is disposed of directing the petitioner to file statutory appeal against Ext.P1 order of assessment, along with petition seeking interim relief, before the appellate authority having jurisdiction, within a period of one W.P.(C).34918/09-H 3 month from today. The petitioner can also produce all necessary documents in support of his claim. If such appeal is received by the appellate authority concerned within the time stipulated as above, the appellate authority shall either dispose of the appeal itself or the stay application, after affording an opportunity of hearing to the petitioner, as early as possible, at any rate within a period of one month from the date of filing of such appeal. Needless to say that the appellate authority shall take note of all the forms and declarations which will be produced by the petitioner. 4. In order to facilitate the petitioner to approach the appellate authority, coercive steps for realisation of the amounts covered under Ext.P1 shall be kept in abeyance for a period of six weeks from today. C.K.ABDUL REHIM, JUDGE. okb