IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 8TH DECEMBER 2010 / 17TH AGRAHAYANA 1932 WP(C).No. 35775 of 2010(V) -------------------------- PETITIONER(S): --------------- JOY.V.JOSEPH, PROPRIETOR, DENA HARDWARES, KOTHAMANGALAM-686 691, ERNAKULAM DISTRICT. BY ADVS. SRI.S.ANIL KUMAR (TRIVANDRUM) SRI.K.S.HARIHARAN NAIR SRI.K.UMAMAHESWAR RESPONDENT(S): --------------- COMMERCIAL TAX OFFICER, KOTHAMANGALAM-686 691, ERNAKULAM DISTRICT. BY ADV.SRI.C.K.GOVINDAN, GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ami/ C.K. ABDUL REHIM, J ------------------------------- WP(C) NO. 35775 OF 2010 ------------------------------------- Dated this the 8th day of December, 2010 JUDGMENT Ext.P3 order of assessment completed with respect to the year 2008-2009, is under challenge in this Writ Petition. Normally an order of assessment issued under Section 25(1) of the Kerala Value Added Tax Act could not be interfered with in a proceedings instituted under Article 226 of the Constitution of India, in view of the effective alternate remedy of appeal provided under the statute. 2. Contention of the petitioner is that the assessment was finalised in total violation of the mandatory procedure contemplated under the relevant provisions and also in total violation of principles of natural justice. It is contended that before finalisation of the assessment the proposal notice was issued to the petitioner as evidenced from Ext.P2. It is the case of the petitioner that on receipt of Ext.P2, the petitioner had 2 WP(C) No. 35775/2010 approached the respondent seeking to file objections. But the respondent was busy in connection with other duties, since he was the Returning Officer for the elections conducted to the local bodies, which was held on 25.10.2010. It is the case of the petitioner that the respondent had promised that the petitioner will be given sufficient time to file objections and a personal hearing will be afforded, after conclusion of the proceedings related with the elections. 3. It is stated that immediately after the date of elections, the petitioner was served with Ext.P3 order. Learned Government Pleader appearing for the respondents, on the basis of instructions, stoutly opposed the allegations. It is mentioned that the petitioner had failed to file any objections inspite of receipt of Ext.P2 proposal notice. The allegation that the petitioner had approached the respondent seeking time is absolutely false and was stoutly denied. It is also pointed out that even on 3 WP(C) No. 35775/2010 an earlier occasion when another notice was issued to the petitioner calling him for production of the books of accounts, the petitioner had failed to respond. Under such circumstances, submission of the Government Pleader is that there is no circumstance warranting interference of this Court and that the petitioner can avail of remedy by way of appeal. 4. Having considered the facts and rival submissions, I am of the view that the petitioner was not successful in proving that there was any denial of opportunity from the side of the respondent. On the other hand, it is evident that there was failure on the part of the petitioner in submitting objections to the proposal notice at any point of time, before finalisation of the assessment. However the fact remains that the assessment was finalised without there being any contest against the proposal and that the petitioner was not able to raise objections against the proposal. It is also noticed that no notice calling the 4 WP(C) No. 35775/2010 petitioner for any personal hearing was issued before completing the assessment. 5. Under such circumstances, in order to meet the ends of justice, I am of the view that an opportunity to the petitioner to file objections can be afforded and the respondent can be directed to take fresh decision on the matter. 6. Accordingly, Ext.P3 order is hereby quashed. The petitioner is directed to submit objections to Ext.P2 notice, within a period of two weeks from the date of receipt of a copy of this judgment. If any such objection is received within the time stipulated, he shall finalise the assessment afresh after affording an opportunity of personal hearing to the petitioner, as early as possible, at any rate within a period of one month from the date of receipt of such objection. 7. Needless to say that the petitioner shall co- operate with finalization of the assessment and if there is 5 WP(C) No. 35775/2010 any failure in this regard the respondent will be free to complete the assessment afresh on an ex-parte basis. C.K. ABDUL REHIM JUDGE dnc