IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 3RD DECEMBER 2008 / 12TH AGRAHAYANA 1930 W.A.No.2273 of 2008 ------------------------------------- AGAINST THE JUDGEMENT IN W.P.(C).30436/2008-W, DATED 31/10/2008 .................... APPELLANT: PETITIONER:- ----------------------------------------- SRI.E.V.SHIBU, PROPRIETOR, ELUVATHUNGAL MARKETING COMPANY, SUPREME TOWER, N.H.47, MAIN ROAD, CHALAKUDY. BY ADV. SRI.E.P.GOVINDAN. RESPONDENTS: RESPONDENTS:- --------------------------------------------------- 1. COMMERCIAL TAX OFFICER (AA), COMMERCIAL TAXES, TRICHUR. 2. THE COMMISSIONER, COMMERCIAL TAXES, TRIVANDRUM. 3. STATE OF KERALA, REPRESENTED BY SECRETARY, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. R1 TO R3 BY SENIOR GOVERNMENT PLEADER SRI.MUHAMMED RAFIQ. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- H.L.Dattu,C.J. & A.K.Basheer,J. -------------------------------------------- W.A.No.2273 of 2008 -------------------------------------------- Dated, this the 3rd December, 2008 JUDGMENT H.L.Dattu,C.J. This Writ Appeal is directed against the orders passed by the learned Single Judge in W.P.(C).No.30436 of 2008, dated 30.10.2008. The learned Single Judge has declined to entertain the writ petition, solely on the ground, that, the petitioner has an alternate remedy provided under the Act itself, if, for any reason, he is aggrieved by the orders passed by the assessing authority. (2) The petitioner is a dealer, registered under the provisions of the Kerala Value Added Tax Act, 2005 (“Act” for short). He is on the rolls of the Assistant Commissioner (Assessment), Special Circle, Thrissur. He is a wholesale dealer in home appliances, like Television, Refrigerator, etc., at Chalakudy in Thrissur District. (3) In the writ petition filed, the petitioner had called in question the revised assessment order passed by the assessing authority, in exercise of his powers under Section 25 of the Act. (4) In the writ petition filed, the primary assertion of the petitioner before the Court was, that, the respondents, without considering the objections filed by the petitioner and without affording sufficient W.A.No.2273 of 2008 - 2 - opportunity of hearing, has passed the impugned order. Therefore, it is stated, that, the orders so passed by the assessing authority is in violation of the principles of natural justice. It is further stated in the petition, that, the assessing authority has no jurisdiction to pass an order under Section 25 of the Act. (5) The learned Single Judge has taken into consideration all these aspects of the matter and he is of the view, that, if, for any reason, the petitioner is aggrieved by the revised orders of assessment passed by the assessing authority, necessarily and naturally has to question the same in an appropriate proceeding before the authorities constituted under the statute itself. (6) The admitted facts are: The reassessment order was passed by the assessing authority. The assessing authority, after noticing, that, a particular turnover had escaped from assessment to tax, after initiating proceedings by issuing re-assessment notice and after considering the objection received in response to the notice, has completed the re-assessment proceedings under the Act. There is typographical error while mentioning the date of the order. However, the records would reveal that the date of re-assessment order is 17.4.2008, we are noticing this date, only because, the assessee's learned counsel contends that the assessee had filed his objections to the re-assessment notice only on 17.4.2008 and the assessing authority W.A.No.2273 of 2008 - 3 - while passing the re-assessment order dated 15.4.2008 could not have observed in the course of the order, that he has considered the objections filed by the assessee dated 17.4.2008. (7) The other contention of the appellant is, that, he was not afforded an opportunity of hearing before the reassessment order was passed by the assessing authority. (8) We have gone through the orders passed by the assessing authority. In that, we notice, that, a number of opportunity was granted by the assessing authority before completing the proceedings under Section 25 of the Act before a forum prescribed under the Act. In that view of the matter, the aforesaid assertion made by the appellant-petitioner in the writ petition and also in the Writ Appeal filed, in our opinion, has no merit, whatsoever. (9) Since an alternate, effective and efficacious remedy of appeal is provided in the statute itself, the appellant, bypassing that remedy, is not expected to approach this Court in a proceeding under Article 226 of the Constitution of India. (10) Keeping this aspect of the matter in view, in our opinion, the learned Single Judge has, rightly, declined to entertain the writ petition; but has granted liberty to the appellant-petitioner, if he so desires, to question the correctness or otherwise of the orders of assessment passed by the assessing authority in exercise of his powers under Section 25 of the Act. W.A.No.2273 of 2008 - 4 - In that view of the matter, we decline to entertain this Writ Appeal and the same is, accordingly, rejected. (11) However, we grant two weeks' time from today to the appellant, if he so desires, to question the correctness or otherwise of the orders of reassessment passed by the assessing authority before the first appellate authority. We make it clear, that, if, for any reason, the appellant files an appeal as directed by us within the time granted, the appellate authority shall consider the same without reference to the period of limitation. Any observation made by us in the course of this order is made for the purpose of disposal of this appeal and that will not come in the way of the first appellate authority in deciding all the contentions that may be raised by the appellant in the memorandum of appeal that he may file before the first appellate authority. Ordered accordingly. H.L.Dattu Chief Justice A.K.Basheer vku/dk Judge