IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH TUESDAY, THE 20TH JANUARY 2009 / 30TH POUSHA 1930 WP(C).No. 31720 of 2008(A) ----------------------------------------------- PETITIONER(S): ---------------------- ELDHOSE KURIAKKOSE, RAILWAY CONTRACTOR, VELOOR, THRISSUR, NOW RESIDING AT KUTTICHIRKADIYAL, OONNUKAL P.O., KOTHAMANGALAM. BY DR. K.B. MOHAMMED KUTTY, SR. BY ADV. SRI.K.M.FIROZ RESPONDENT(S): ------------------------- COMMERCIAL TAX OFFICER (WORKS CONTRACT AND LUXURY TAX), OFFICE OF THE DEPUTY COMMISSIONER, DEPARTMENT OF COMMERCIAL TAXES, THRISSUR - 680004. BY GOVERNMENT PLEADER SHRI C.K. GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 31720 OF 2008 A -------------------------------------- Dated this the 20th January, 2009 JUDGMENT Petitioner challenges Ext.P1 assessment order and Ext.P2 demand notice. By Ext.P1, petitioner is assessed purportedly by the Fast Track Team under Section 17D of the KGST Act. Ext.P2 is the demand notice. 2. I heard Dr. K.B. Mohammed Kutty, learned senior counsel appearing for the petitioner and also the learned Government Pleader. The main contention is based on Ext.P4 Judgment of the Division Bench of this Court as per which pre- assessment notice is to be given. In the Counter Affidavit, it is not disputed that pre-assessment notice was not issued and also it is stated that since the assessment was completed by the Fast Track Team, the rate of tax is 5.6 per cent which was correctly applied and it was brought to the notice of the Authorised Representative and the assessment was completed without issuing pre-assessment notice. A Reply Affidavit is filed, WPC.31720/08 A 2 wherein, it is stated, inter alia, as follows: “The Statement in the Counter Affidavit that the higher rate of tax brought to the notice of my authorised representative is incorrect. There was no such instance. My authorised representative has not given any return statement accepting the rate of tax at 5.6%. He submitted that the statement in the Counter Affidavit is therefore clearly incorrect. I have serious objection to levy tax at the rate of 5.6% instead of the correct rate of 2.2%.” 3. In the light of the pleadings, I would think that having regard to the Judgment of this Court and also the dictate of the Circular, the petitioner should have been issued a pre- assessment notice. It is to be noticed that in Circular No.17/07, Clause 20 reads as follows: “Even though the assessment order shall have to be signed by all members of the team, the pre-assessment notices approved by the team need not be signed by all team members, and can be signed by any member on behalf of the team.” WPC.31720/08 A 3 4. Learned Government Pleader fairly submits that Ext.P1 order is signed only by one person. This is a clear violation of the Circular. In the light of these circumstances, the Writ Petition is only to be allowed. Accordingly, the Writ Petition is allowed and Exts.P1 and P2 are quashed. The matter will be re- done in accordance with law within two months from the date of receipt of a copy of this Judgment. Sd/= K. M. JOSEPH, JUDGE kbk. // True Copy // PS to Judge