IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.VINOD CHANDRAN WEDNESDAY, THE 30TH NOVEMBER 2011 / 9TH AGRAHAYANA 1933 WP(C).No. 21710 of 2007(H) -------------------------- PETITIONER: --------------- P.G.SUNNY, PARAYIL HOUSE, KAKKATTU P.O., PIRAVOM, ERNAKULAM DISTRICT. BY ADV. SRI.RAMESH CHERIAN JOHN RESPONDENT: --------------- SALES TAX OFFICER, PUNALUR. SENIOR GOVERNMENT PLEADER SRI. S. SUDHEESH KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 21710 of 2007(H) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE ORDER OF ASSESSMENT DATED 9.3.2005 EXT.P2 : TRUE COY OF THE ORDER OF THE COMMISSIONER OF COMMERCIAL TAXES THIRUVANANTHAPURAM, DT.20.4.2007 EXT.P3 : TRUE COPY OF THE ORDER U/S 30B ACT DT. NIL EXT.P4 : TRUE COPY OF THE LETTER DT.5.7.2007 RESPONDENTS' ANNEXURES: EXT. R1(a) : TRUE COPY OF THE TRANSIT PASS DT.6.5.1999 EXT.R1(b) : TRUE COY OF THE ORDER DT.18.9.2001 IN RP NO.163/2001 EXT.R1(c) : TRUE COPY OF THE DECLARATION GIVEN BY THE PETITIONER STATING HIS DRIVING LICENSE NUMBER EXT.R1(d) : TRUE COPY OF THE ORDER DT.5.12.2006 IN RP NO.127/2006 \ //TRUE COPY// P.A. TO JUDGE jma K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P.(C) No. 21710 OF 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of November, 2011 J U D G M E N T The petitioner a driver, is before this Court challenging Ext.P3 assessment order passed against him under Section 30B of the KGST Act. The above writ petition was filed in the year 2007 and the unconditional Interim Order granted in the same was extended for various periods and eventually on 4.6.2009 the same was extended until further orders. Though a challenge against the assessment order; when appellate remedies are available, is normally not entertained by this Court, the fact that the above writ petition has been pending for so long as also the facts which led to the filing of the above writ petition would persuade me to consider the same on merits. I am also informed that the joint and several liability under Section 30B has been discharged by the transporter in the Amnesty Scheme. However, since the same could not be verified, the above writ petition is disposed of on merits. 2. The transaction which led to Ext.P3 assessment was WPC.No.21710/2007 : 2 : the transport of 12000 liters of rectified spirit through sales tax check post Aryankavu and subsequent failure to surrender the transit pass obtained from the above mentioned entry check post. On the basis of the alleged offence, notices were issued in the name of the consignor, the driver and two transporters. The notice threatened imposition of penalty at Rs.2,40,000/- being double the amount of tax sought to be evaded. The respondent has filed a counter affidavit. Even as per the counter affidavit initial notice was send to one P.M. Sunny, Pallimedayil House, PiravomP.O., Ernakulam District and assessment completed against the said person. In a revision filed by the said P.M. Sunny, he contended that he was not the driver of the vehicle allegedly involved in the offence and another driver P.G. Sunny, the petitioner herein, was driving the vehicle at the time of the transit of the rectified spirit through Aryankavu check post. In the circumstances by Ext.R1(b) the first revisional authority remanded the assessment for a fresh disposal in accordance with law. 3. It is after Ext.R1(b) remand that Ext.P1 was passed, which according to the petitioner was not received by him since WPC.No.21710/2007 : 3 : the address shown is not correct. It is pertinent to note that though there was a specific direction by the first revisional Authority to enquire into the aspect of the identity of the person who was driving the vehicle; no such enquiry is seen conducted as it can be discerned from Ext.P1. But for sending a notice in the address supplied by another driver no steps are seen to have been taken to ascertain the identity as such. 4. The petitioner became aware of Ext.P1 order only when the State produced it along with the counter affidavit in a writ petition filed by him against the revenue recovery proceedings initiated against him. On specific orders of this Court the petitioner was relegated to the statutory remedy which culminated in Ext.P2 order passed by the Commissioner exercising jurisdiction under Section 38 of the KGST Act. The Commissioner found that the claim of the first revisional authority that an authorised representative appeared for hearing and that at a certain point the revision petitioner himself appeared was denied by the petitioner. Further on finding that the Commercial Tax officer also has not conducted a detailed enquiry into the transaction the matter was again remanded to the original WPC.No.21710/2007 : 4 : authority with a direction to consider the matter afresh. It was pursuant to Ext.P2, that Ext.P3 assessment, now impugned in the above writ petition has been passed. 5. It is curious to note that despite the two orders of remand directing disposal of the assessment afresh specifically making enquiries regarding the identity of the person, no such effort was made by the Assessing Authority. The only attempt made towards this end by the assessing authority is the sending of notice to the driver. The petitioner denies the receipt of the notice send to him as noticed in Ext.P2. Ext.P3 order shows the correct address of the petitioner and the petitioner admits to having received it but denied the receipt of any notices from the Assessing Officer. Per Contra the State in their counter affidavit asserts that notice was send. During the course of hearing the Government Pleader produced and took me through the records and pointed out the returned cover containing the notice which was send to the assessee. The address seen in the returned cover is P.G Sunny, Parayil House,Kakkattukara, Piravom whereas the assessment order shows the address as Sri.P.G Sunny, S/o. George, Paraayil House, Kakkattukara, Kakkattu P.O, Piravam. WPC.No.21710/2007 : 5 : Evidently, the notice send by the Assessing Officer is not in the correct address given by the petitioner. The address of the petitioner is also evident from Ext.P2 order of the Commissioner. The notice as seen in the returned cover is not the address shown in Ext.P2. In addition what is glaring is the absence of any enquiry conducted regarding the identity of the driver, as has been directed by Annexure R1(b) and Ext.P3. 6. Government Pleader would raise a contention that Ext.R1(c) shows the driving licence of the Driver as DL 1521/2000 and the best evidence that could have been produced by the petitioner is his own driving licence. However, Ext.R1(c) is dated 5.5.1999, and the driving licence shown is of the year 2000 and absolutely no reliance can be placed on the same. In the circumstances the Assessing Officer having not conducted any enquiry in the matter regarding the identity of the driver who was involved in the alleged transport, despite the matter having been remanded twice, I am of the opinion that no useful purpose can be served at this distance of time by remanding the matter to the Assessing Officer. 7. Ext.P3 assessment order is passed without complying WPC.No.21710/2007 : 6 : with the directions in Ext.P2 remand order and there is no notice to the assessee who had obtained Ext.P2 remand order raising the issue of non receipt of notice as also mistaken identity. In the circumstances, Ext.P3 assessment order is set aside and there shall be no recovery steps against the petitioner on the basis of the demand raised in Ext.P3. Writ petition is allowed accordingly. No costs. Sd/- (K. VINOD CHANDRAN, JUDGE) jma //true copy// P.A To Judge