IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 31ST AUGUST 2011 / 9TH BHADRA 1933 WP(C).No. 9784 of 2009(P) --------------------------------- PETITIONER(S): --------------- V.A.PHILIP, S/O.ABRAHAM, AGED 71 YEARS, *(LATE) YMCA ROAD, ALLEPPEY. * (ANISH PHILIP, S/O. (LATE) V.A. PHILIP, AGED 35 years, YMCA ROAD, ALLEPPEY) * IMPLEADED AS PER ORDER IN I.A. NO.13979/2011 DATED 31.8.2011) BY ADV. SRI.V.B.HARI NARAYANAN RESPONDENT(S): -------------------- 1. THE STATE OF KERALA, REP. BY ITS SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, TRIVANDRUM. 2. COMMERCIAL TAX OFFICER, 2ND CIRCLE, ALAPPUZHA. ADV. SRI. C.K. GOVINDAN - GOVERNMENT PLEADER FOR R THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 9784 of 2009(P) APPENDIX PETITIONER'S EXHIBITS EXT.P1: COPY OF NOTICE DATED 6.5.2004. EXT.P2: COPY OF OBJECTION FILED BY THE PETITIONER DTD 27.5.2004. EXT.P3: COPY OF NOTICE DATED 9.6.2008. EXT.P4: COPY OF JUDGMENT IN WRIT PETITION NO.18964/2008 DTD 26.6.2008. EXT.P5: COPY OF ASSESSMENT ORDER DTD 22.12.2008. EXT.P6: COPY OF DEMAND NOTICE ISSUED UNDER RULE 17(4). EXT.P7: COPY OF OBJECTION DTD 12.1.2009. RESPONDENTS' EXHIBITS: EXT.R2(a): COPY OF LETTER DATED 25.10.2006 OF CONSIGNOR. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------------- W.P.(C) No.9784 OF 2009 ---------------------------------------------- Dated this the 31st day of August, 2011 JUDGMENT The petitioner challenges Ext.P5 assessment order passed by the 2nd respondent under the Kerala General Sales Tax Act. The petitioner earlier approached this Court by filing W.P.(C) No.18964/2008 and obtained Ext.P4 judgment for a direction to the 2nd respondent to consider the petitioner's objections. It is pursuant thereto Ext.P5 assessment order has been passed. The petitioner's contention is that Ext.P4 judgment has not been complied with while passing Ext.P5 order. The petitioner's contention is that in Ext.P2 objection the petitioner had sought an opportunity to cross examine the consignor, which was denied to the petitioner. 2. A counter affidavit has been filed by the 3rd respondent wherein it is stated that, pursuant to Ext.P4 judgment, the books of accounts of the petitioner were called for verification on 29.9.2008 as per notice dated 23.9.2008, which was served on W.P.(C)No.9784/09 2 the petitioner on 24.9.2008. But the petitioner has not availed of that opportunity. Therefore, a pre-assessment notice dated 11.12.2008 was issued to the petitioner which was duly served on the petitioner on 15.12.2008. The petitioner filed a reply on 19.12.2008. In that reply, the petitioner never sought cross examination of the consignor who is alleged to have sold the goods in question to the petitioner, which the petitioner has not accounted for, for which only the assessment sought to be challenged has been made. 3. I have considered the rival contentions in detail. One of the contentions raised by the petitioner is that the petitioner has not been given an opportunity to cross examine the persons whose statements have been relied on. But, from Ext.P2, I find that the petitioner had asked for an opportunity to cross examine the lorry driver and not the consignor. It is not disputed before me that the assessing authority had issued a summons to the lorry driver which was returned with the endorsement that the person is 'not known'. Curiously, despite the fact that the specific stand of the assessing officer W.P.(C)No.9784/09 3 was that the petitioner had purchased timber from M/s.Harish Kanda Timber Pvt. Ltd, Tenkasi, the petitioner has not chosen to seek cross examination of that person, although he had sought cross examination of the lorry driver. Further despite knowing fully well that the assessment is based on the information from M/s. Harish Kanda Timber Pvt.Ltd., the petitioner has not chosen to implead that person in this writ petition also. Along with the counter affidavit, the 2nd respondent has produced a letter from M/s. Harish Kanda Timber Pvt. Ltd to the effect that they had in fact supplied timber logs to the petitioner during the financial year 2002- 2003 and they did not receive any payment from the party till now. In view of the above circumstances, I do not find any merit in the contention of the petitioner that the assessment order is violative of principles of natural justice. The other contentions being based on facts, this Court cannot decide the question on the basis of affidavits. That being so, the petitioner's remedy lies in filing an appeal against the assessment order. W.P.(C)No.9784/09 4 Accordingly, the writ petition is dismissed, without prejudice to the right of the petitioner to file an appeal against the impugned assessment order as provided in the Statute. S. SIRI JAGAN, JUDGE acd W.P.(C)No.9784/09 5