IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 5TH JULY 2011 / 14TH ASHADHA 1933 WP(C).No. 33697 of 2010(J) ------------------------------------ PETITIONER(S): ---------------------- M.J.PHARMACEUTICALS LIMITED, ELAMKULAM P.O., KADAVANTHRA, ERNAKULAM DISTRICT, KERALA, REP. BY ITS POWER OF ATTORNEY HOLDER SRI.K.CHANDRAMOHANAN NAIR. BY ADV. SRI.S.ANIL KUMAR (TRIVANDRUM) SRI.K.S.HARIHARAN NAIR SRI.K.UMAMAHESWAR RESPONDENT(S): -------------------------- THE ASSISTANT COMMISSIONER, COMMERCIAL TAXES, SPECIAL CIRCLE-III, ERNAKULAM-682015. GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.33697/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ASSESSMENT ORDER DT. 30.8.2003 OF THE RESPONDENT. P2:- COPY OF THE JUDGMENT DT. 29.10.2009 IN ST REV. NO.122/06. P3:- COPY OF THE NOTICE DTD. 2.6.2010 OF THE RESPONDENT. P4:- COPY OF THE REPLY DTD. 3.6.2010. P5:- COPY OF THE ASSESSMENT ORDER DTD. 27.9.2010. P6:- COPY OF THE NOTICE DTD. 4.1.2011 OF THE 2ND RESPONDENT. P7:- COPY OF THE NOTICE DTD. 4.1.2011 OF THE 3RD RESPONDENT. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss S. SIRI JAGAN, J. ------------------------------------------- W.P.(C) No.33697 OF 2010 ---------------------------------------------- Dated this the 5th day of July, 2011 JUDGMENT For the year 1999- 2000, the petitioner was assessed to tax under the Kerala General Sales Tax Act and assessment order was passed. That was challenged. Ultimately, the matter came in ST.Rev. No.122/06 before a Division Bench of this Court. In the same, the Division Bench set aside the assessment and directed re-assessment in the following words: “........... However since facts were not considered by any of the authorities including the Tribunal, we set aside the order of the Tribunal and that of the lower authorities and remand the matter to the assessing Officer for reconsideration and assessment after taking into account the relationship of the purchaser company namely Sun Pharmaceuticals with the respondent company during 1999-2000, the relevant year to which the assessment relates. However, since the respondent is merged with Sun Pharmaceuticals, it is enough for the officer to issue notice to the Sun Pharmaceuticals, the successor company, and proceed with the assessment. For the sake of finality, it is open to the Sun Pharmaceuticals to accept the original assessment with 50% addition of gross profit, and if they agree, the original assessment will be restored and the matter to be settled by officer or otherwise the officer will conduct enquiry as to whether there is physical transfer of possession of goods or whether it is only W.P.(C)No.33697/10 2 a namesake sale between two companies and sale by Sun Pharmaceuticals to the distributors is the real first sale for the purpose of making assessment. The S.T. Revision is allowed as above.” Subsequently, the petitioner declined to accept the original assessment with 50% addition. Thereafter, the assessing authority passed Ext.P5 order. That is under challenge before me. 2. The contention raised is that, in the enquiry conducted, as directed in the latter part of the direction of the Division Bench, the petitioner was not afforded an opportunity of being heard. 3. The learned Government Pleader submits that Ext.P5 order has been passed in accordance with the direction in Ext.P2 judgment of this Court. It is submitted that at the time of inspection, pursuant to the directions of the judgment, the petitioner was present and therefore it was not necessary to hear them separately. 4. I have considered the rival contentions in detail. From the tenor of the counter affidavit and the submissions of the learned Government Pleader, it is clear that, apart from the inspection, wherein the petitioner was allegedly present, W.P.(C)No.33697/10 3 the petitioner was not given a hearing to explain the findings in the inspection. I am of opinion that principles of natural justice demands that the petitioner should be afforded an opportunity of being heard after the inspection, which has admittedly not been done in this case. Therefore, Ext.P5 assessment order suffices from the vice of violation of principles of natural justice. On that ground, Ext.P5 assessment order is quashed. The respondent is directed to pass fresh assessment orders, after affording an opportunity of being heard to the petitioner. The writ petition is disposed of as above. S. SIRI JAGAN, JUDGE acd W.P.(C)No.33697/10 4 W.P.(C)No.33697/10 5