IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 29TH MARCH 2010 / 8TH CHAITHRA 1932 WP(C).No. 10578 of 2010(V) ------------------------------------- PETITIONER(S): ------------------------- M/S,HYUNDAI ELECTRONICS (INDIA)LTD, REGD.OFFICE AT MAROL INDUSTRIAL ESTATE, MAROL BHAVAN,NAKWANA ROAD,ANDERI WEST, MUMBAI-400059,REP.BY ITS DIRECTOR, SRI ANIRUDH DHOOT. BY ADV. MR.E.P.GOVINDAN SMT.DEEPA.G. RESPONDENT(S): ------------------------- 1. THE ASST.COMMISSIIONER (ASSMT) SPL.CIRCLE III,COMMERCIAL TAXES,ERNAKULAM. 2. THE DY.COMMOSSIONER (A), COMMERCIAL TAXES,ERNAKULAM. 3. THE DISTRICT COLLECTOR, MUMBAI SUB URBAN DISTRICT (RECOVERY BRNCH) ADMINISTRATIVE BUILDING,10TH FLOOR, SARKARI BHAVAN,BANDRA(E),MUMBAI-400051. 4. THE DISTRICT COLLECTOR, ERNAKULAM. 5. THE NAIB TAHSILDAR(RECOVERY OF GOVT.DUES OFFICE OF THE DISTRICT COLLECTOR, MUMBAI SUBERBAN DT.,ADMINISTRATIVE BUILDING, 9TH FLOOR,NEAR CHETANA COLLEGE GOVT.COLONY BANDRA EAST,MUMBAI-400051. 6. THE STATE OF KERALA REPRESENTED BY THE SECRETARY, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. BY GOVT. PLEADER MR.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P.R. RAMACHANDRA MENON, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C).No. 10578 of 2010 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 29th day of March, 2010 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ J U D G M E N T The petitioner is stated as aggrieved of the condition imposed by the Appellate Authority vide Exts.P6 and P7 orders, whereby the petitioner has been directed to deposit 1/3rd of the due amount and furnish bank guarantee for the balance on or before the 25th of March 2010, so as to avail the benefit of the interim stay. 2. The learned counsel for the petitioner submits that, the assessments have been finalised vide Exts.P2 and P3, without serving proper notice to the petitioner, which according to the petitioner is very much evident from Exts.P2 and P3, wherein it has been observed that the service was made by way of 'affixture'. The learned counsel submits that the manner of service by 'affixture' pursued by the Assessing Authority is not correct or proper, as the same can be pursued only as the last resort, after trying out the other W.P.(C).No. 10578 of 2010 2 courses, as given under Section 88. Reference is also made to the decision, as rendered by this Court in Deputy Commissioner of Sales Tax (Law), Board of Revenue (Taxes) v. V. Gopi in 67 STC 79. 3. The learned Government Pleader appearing on behalf of the respondents submits that, the contention now raised referring to the mandate under Section 88 and the decision of this Court are not applicable to the case, in so far as the petitioner had filed a representation before the Assessing Authority, stating that any further notice/ correspondence might be issued only in the particular address as given therein. Accordingly, notice was very much sent to the petitioner in the said address by Registered Post, which however was returned, stating that the addressee was not available. It was in the said circumstance, that notice was effected by way of 'affixture', which is also a valid mode of service as borne by the relevant provision of law. The learned Government Pleader further submits that, the W.P.(C).No. 10578 of 2010 3 proceedings were very much known to the Directors as well, who had approached this Court earlier, when proceedings were stated as being pursued against the Directors, raising many a ground and on bringing out the actual facts and figures to the notice of this Court, the said Writ Petition was sought to be withdrawn. 4. The learned counsel for the petitioner submits that the prayer will stand confined to direct the appellate authority, to consider and pass appropriate orders in the appeals, stating that there is every chance for passing orders in favour of the petitioner/ assessee who is not having any business here, having closed down the same, much earlier. The learned counsel also submits that the petitioner is ready and willing to satisfy a portion of the liability and is rather aggrieved of the extent of burden fixed on the shoulders of the petitioner by virtue of Ext.P7, whereby 1/3rd of the liability has been ordered to be satisfied, which by itself will come nearly 75 lakhs. W.P.(C).No. 10578 of 2010 4 5. Considering the facts and circumstances, this Court finds that there is nothing illegal or improper in Exts.P6 and P7 and that the said orders have been passed with proper application of mind. However, this Court finds that, on weighing the entire aspects as a whole and also the present position of the petitioner who has closed down the business, the condition now imposed vide Exts.P6 and P7 could be modified slightly. Accordingly, the petitioner is directed to deposit '25%' of the due amount and furnish sufficient security for the balance, so as to avail the benefit of interim stay. Taking note of the fact that the time stipulated by the Assessing Authority is already over, the petitioner is permitted to have 3 weeks time for satisfying the condition as above. The writ petition is disposed of as above. P.R. RAMACHANDRA MENON JUDGE nl