IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 21ST DECEMBER 2011 / 30TH AGRAHAYANA 1933 WP(C).No. 22878 of 2010(H) ----------------------------------------- PETITIONER(S): -------------------------- C.P.JOJO, AGED 38, S/O.C.O.PYLAN, CHILLAYI HOUSE, P.O.POTTA, CHALAKUDY, THRISSUR DISTRICT. BY ADVS. SRI.SHEEJO CHACKO, SRIA.G.UNNIKRISHNAN, SRI.DEVAN K.MENON. RESPONDENT(S): ---------------------------- 1. STATE OF KERALA REP.BY COMMISSIONER, COMMERCIAL TAXES, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY COMMISSIONER (APPEALS) III, COMMERCIAL TAXES, ERNAKULAM. 3. COMMERCIAL TAX OFFICE (WC, L& T), OFFICE OF THE DEPUTY COMMISSIONER, COMMERCIAL TAXES, THRISSUR. 4. DEPUTY TAHSILDAR, REVENUE RECOVERY, MUKUNDAPURAM. 5. VILLAGE OFFICER, EAST CHALAKUDY. R1 TO R5 BY SR.GOVERNMENT PLEADER SRI.S.SUDHISH KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/12/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.22878/2010 H APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE RELEVANT PAGE OF CONTRACTOR'S REGISTRATION CARD. P2: COPY OF THE CERTIFICATES ISSUED BY THE MUNICIPAL SECRETARY CHALAKUDY ON 17/09/2009 SHOWING THE DETAILS OF THE REMITTANCE TO THE GOVERNMENT. P3: COPY OF THE NOTICE OF DEMAND RELATING TO THE ASSESSMENT YEAR 2002-2003. P4: COPY OF THE NOTICE OF DEMAND IN RESPECT OF ASSESSMENT YEAR 2003-2004. P5: COPY OF THE DEMAND NOTICE IN RESPECT OF ASSESSMENT YEAR 2004-2005. P6: COPY OF THE ASSESSMENT ORDER IN RESPECT OF 2002-2003 DTD. 19/09/2008. P7: COPY OF THE ASSESSMENT ORDER RELATING TO THE ASSESSMENT YEAR 2003-2004. P8: COPY OF THE ASSESSMENT ORDER RELATING TO THE YEAR 2004-2005 DTD. 19/09/2008. P9: COPY OF THE APPEAL BEARING NO.STA 248/2009 IN RESPECT OF ASSESSMENT YEAR 2002-2003. P10: COPY OF THE APPEAL FILED IN RESPECT OF THE ASSESSMENT YEAR 2003-2004 NUMBERED AS STA 249/2009. P11: COPY OF THE APPEAL FILED IN RESPECT ASSESSMENT YEAR 2004-2005 NUMBERED AS KVAT 250/2009. P12: COPY OF THE DEMAND NOTICE DTD. 20/08/2009 ISSUED IN FORM NO.1 UNDER THE R R ACT. P13: COPY OF THE ATTACHMENT LISTDTD. 14/07/2010. P14: COPY OF THE KACHEET RECEIPT. P15: COPY OF THE MAHASSER DTD. 13/07/2009. Kss ..2/- ..2.... WPC.NO.22878/2010 H P16: COPY OF THE AFFIDAVIT. P17: COPY OF THE RECEIPT ISSUED BY THE VILLAGE OFFICER EAST CHALAKUDY. P18: COPY OF THE AFFIDAVIT DTD. 17/08/10 BY SRI.N.K.OUSEPH. P19: COPY OF THE AFFIDAVIT DTD. 17/08/10 BY SRI. M.O.WILSON. RESPONDENT'S ANNEXURES: ANNEX.R3(A): COPY OF THE ORDER FOR THE ASSESSMENT YEAR 2002-2003. ANNEX.R3(B): COPY OF THE ORDER FOR THE ASSESSMENT YEAR 2003-2004. ANNEX.R3(C): COPY OF THE ORDER FOR THE ASSESSMENT YEAR 2004-2005. /TRUE COPY/ P.A.TO JUDGE Kss C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C) No.22878 of 2010 ------------------------------------------- Dated this the 21st day of December, 2011 J U D G M E N T ---------------------- Petitioner is a Contractor undertaking works on behalf of Chalakkudi Municipality. The petitioner is aggrieved by Ext.P6 to P8 order of assessment finalised against him with respect to the years 2002-03, 2003-04 and 2004-05. The assessments were completed on a best judgment basis alleging that, in spite of service of the proposal notices, the petitioner had failed to raise any objections. Aggrieved by the impugned assessments the petitioner had filed Ext.P9 to P11 appeals before the 2nd respondent. It is stated that the appeals were returned by the 2nd respondent through an order dt. 14.12.2009. A communication received from the office of the 2nd respondent in this regard was produced for my perusal. It is noticed that S.T.A. Nos.248 to 250 of 2009 with respect to the assessment years 2002-03 to 2004-05 W.P.(C).22878/10 -2- were rejected observing that the appeals under Section 17D are not maintainable before the said authority and the appeals are maintainable only before the Appellate Tribunal. 2. On a perusal of Exts.P6 to P8 orders it is noticed that those are proceedings issued by the 3rd respondent, who is the assessing authority, and it is signed only by the 3rd respondent. But at the top portion of the impugned orders it is noticed that name of the members of the team of officers who had finalised the assessment is mentioned. It is settled law by this time that if an assessment is to be finalised under Section 17D of the KGST Act, all the officers who are members of the team should sign the order in question. Further it is trite law that an assessment under Section 17D can be finalised only after affording opportunity of hearing to the assessee. Going by the impugned orders of assessment it is evident that there is patent violation of the procedure contemplated under Section 17D as settled in various decisions of this court. Hence I am of the view that impugned orders are unsustainable. Eventhough various allegations are raised W.P.(C).22878/10 -3- with respect to steps taken for recovery of the amounts, I am not adjudicating upon any such issues since it is found that impugned orders of assessments are unsustainable. 3. Under the above mentioned circumstances, the writ petition is allowed and Ext.P6 to P8 are hereby quashed. The 3rd respondent is directed to finalise the assessment afresh, either by resorting to procedure contemplated under Section 17D or under Section 17(3) of the KGST Act, with due notice and opportunity afforded to the petitioner. Fresh orders in this regard shall be issued as early as possible, at any rate, within a period of one month from the date of receipt of a copy of this judgment. 4. It is made clear that all further proceedings of recovery shall be persued only subject to outcome of the fresh assessments. Deposits or recoveries if any received shall be appropriated in accordance with outcome of the fresh assessments. Sd/- C.K.ABDUL REHIM, JUDGE. Okb True copy P.A to Judge