IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 2ND NOVEMBER 2011 / 11TH KARTHIKA 1933 WA.No. 1370 of 2011() --------------------- AGAINST THE JUDGEMENT IN WPC.6989/2011 Dated 30/06/2011 .................... APPELLANTS/RESPONDETNS 1,2 & 4 IN WPC: ----------------------------------------- 1. THE COMMERCIAL TAX OFFICER, DEPARTMENT OF COMMERCIAL TAXES, IRINJALAKKUDA. 2. THE DEPUTY COMMISSIONER (APPEALS) DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM. 3. THE INSPECTING ASST.COMMISSIONER, DEPARTMENT OF COMMERCIAL TAXES, IRINJALAKUDA. BY SRI.BOBY JOHN, SPL.GOVERNMENT PLEADER FOR TAXES RESPONDENT/PETITIONER IN WPC: --------------------------------- C.U.MATHAI, TOBACCO AND STATIONARY DEALER, PUDUKKAD P.O.- 680 301. ADV. DR.K.B.MUHAMED KUTTY, SENIOR ADVOCATE FOR R SRI.P.N.DAMODARAN NAMBOODIRI FOR R THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 02/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR, Ag.C.J. & P.S.GOPINATHAN, J. -------------------------------- W.A.No.1370 OF 2011 --------------------------------- Dated this the 2nd day of November, 2011 J U D G M E N T ~~~~~~~~~~~ C.N.Ramachandran Nair, Ag.C.J. Writ Appeal is filed by the State challenging the impugned judgment of the learned Single Judge declaring reassessment completed under Section 25 of the Kerala Value Added Tax Act as invalid for the reason that a personal hearing is not granted to the respondent. We have heard the learned Government Pleader appearing for the State and also the learned senior counsel Dr. Mohammed kutty appearing for respondents. Section 25 makes it clear that escaped turn over can be assessed to tax only after giving reasonable opportunity to the dealer to raise objection against the proposal. In this case, admittedly, Ext.P24 notice was issued by the Assessing Officer to the respondent giving opportunity to file written reply to the proposal for revision and also by specifically stating in the notice that the dealer will be heard on date of filing the objection. In the reply filed vide Ext.P26 it is seen that the W.A.No.1370/2011 2 dealer has not requested for any personal hearing on the other hand what he has stated in the reply is as follows: “I request you to please consider the above points and complete the assessments as per the books of accounts regularly maintained. Otherwise I will suffer irrevocable damage and injury.” 2. The question whether a personal hearing is required on the written reply filed is a matter of choice of the dealer against whom proceeding is initiated under Section 25. Therefore, on receipt of notice under Section 25 the dealer is free to file detailed reply, produce documentary evidence and statement of accounts in support thereof and request the officer to consider his written objections and documents and decide the matter. On the other hand, if the dealer wants an opportunity of personal hearing to explain his stand as stated in the written reply and accounts and evidence to the officer he is free to ask for it. In this case, it is seen that the respondent inspite of given a specific opportunity of filing written reply and for a hearing on the date of filing the reply did not opt for a personal hearing. If W.A.No.1370/2011 3 the respondent was not able to appear for personal hearing on the date of filing the reply it was absolutely open to him to request the officer to give a posting date for hearing him. However, on going through the reply extracted above, we notice that inspite of the specific opportunity granted for hearing the respondent has neither availed nor requested for a posting for hearing. On the other hand, he left it to the officer to decide the matter after considering his objections filed in writing. We, therefore, do not find any justification for the Single Judge to interfere with the assessment order on the ground of violation of natural justice. The only remedy available to the respondent against the assessment is to file an appeal and contest the matter before appellate authority. Though we uphold the requirement of personal hearing if desired by the party, on the facts of this case, we find that the party has waived it though the officer granted it. Writ Appeal is, therefore, allowed vacating the judgment of the learned Single Judge and by restoring the reassessment. However, since the Single Judge interfered with the matter the respondent is W.A.No.1370/2011 4 granted two weeks time from today to file appeal against reassessment. (C.N.RAMACHANDRAN NAIR, Acting Chief Justice) (P.S.GOPINATHAN, JUDGE) ps/2/11