IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 4TH AUGUST 2011 / 13TH SRAVANA 1933 WA.No. 1125 of 2011() --------------------- AGAINST THE JUDGEMENT IN WPC.4763/2011 Dated 05/07/2011 .................... APPELLANT/PETITIONER ------------------------ P.A.MAHABOOB, PROPRIETOR, SOLACE HARDWARE, PATHANAMTHITTA. BY ADV. SRI.ANIL D. NAIR SRI.J.R.PREM NAVAZ SMT.NIVEDITA A.KAMATH RESPONDENTS/RESPONDENTS: --------------- 1. THE FAST TRACK ADALATH TEAM NO.II, PATHANAMTHITTA-689 695. 2. THE STATE OF KERALA REPRESENTED BY ITS SECRETARY (TAXES), SECRETARIAT, THIRUVANANTHAPURAM-695 001. BY G.P. SRI.V.K.SHAMSUDEEN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. .................................................................... Writ Appeal No.1125 of 2011 .................................................................... Dated this the 4th day of August, 2011. JUDGMENT Ramachandran Nair, J. Writ Appeal is filed against judgment of the learned Single Judge relegating the appellant to alternate remedy by way of appeal against sales tax assessments. We have heard counsel appearing for the petitioner and Government Pleader appearing for the respondents and have also gone through the assessment orders. 2. Appellant's claim is that notice was sent to shop address which remains closed as appellant has already closed down business. Government Pleader has refuted the claim by saying that assessment notices were in fact served on the assessee personally and the assessee did not appear. On going through the assessment orders what we find is that the turnover assessed is based on the returns filed and the goods sold are taxable only at first sale point. Since the appellant's claim is only second sale exemption based on purchase bills which can be produced without any difficulty, if the appellant has the same, we feel W.A. 1125/2011 2 appellant can be given one opportunity to produce the same. Accordingly we dispose of the Writ appeal by modifying the judgment of the learned Single Judge as follows. There will be direction to the Assessing Officer to withhold recovery proceedings for a period of one month from now. The appellant will produce copy of this judgment before the Assessing Officer, who will give a posting date after 10 days therefrom for the appellant to produce entire purchase bills and other accounts for verification. If the Assessing Officer on verification is satisfied that second sales are proved, the Assessing Officer will modify the assessments by rectifying the assessment orders granting eligible exemption and demand tax due for the balance turnover. If on verification of accounts Assessing Officer finds that any modification is required on the turnover assessed, he is free to do that after issuing notice to the assessee. The Assessing Officer is directed to pass rectified or modified orders within three weeks from now. If the demand modified and if not the original demand is not paid within one month, recovery proceedings will be initiated immediately thereafter. If appellant has a grievance against the modified orders, appellant will W.A. 1125/2011 3 remit the entire tax under protest and file appeal against assessment. The officer is also free to cross-verify genuineness of the bills, if he doubts the same, from suppliers or from the Assessing Officers before whom supplier is assessed. C.N.RAMACHANDRAN NAIR Judge P.S.GOPINATHAN Judge pms