IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 12TH APRIL 2011 / 22ND CHAITHRA 1933 WP(C).No. 11509 of 2011(K) ------------------------------------ PETITIONER(S): ---------------------- KANICHAI HOTELS PVT.LTD EAST FORT, THIRUVANANTHAPURAM REPRESENTED BY ITS DIRECTOR REJI K VARGHESE BY ADVS. SRI.K.P.DANDAPANI, SENIOR ADVOCATE SRI.MILLU DANDAPANI RESPONDENT(S): ------------------------ 1. THE ASSISTANT COMMISSIONER -III COMMERCIAL TAXES, SPECIAL CIRCLE THIRUVANANTHAPURAM 695 001. 2. STATE OF KERALA REP BY SECRETARY TO GOVERNMENT TAXES DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM 695 001. BY GOVT. PLEADER SRI.V.K.SHAMSUDHEEN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: STU WP(C).No. 11509 of 2011(K) APPENDIX PETITIONER'S EXHIBITS: P1 : COPY OF THE NOTICE NO.11010606/2005-06 ISSUED BY THE 1ST RESPONDENT DTD 08/03/2011. P2 : COPY OF THE REPLY NO. LUCIA/D-130/2010-11 DTD 14/03/2011 SUBMITTED BY THE PETITIONER. P3 : COPY OF THE NOTICE NO. 11010606/2005-06 & 2006-07 DTD 16/03/2011 ISSUED BY THE 1ST RESPONDENT. P4 : COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT, DTD 22/03/2011. P5 : COPY OF THE NOTICE NO.11010606/2006-07 ISSUED BY THE 1ST RESPONDENT DTD 09/03/2011. P5(a) : COPY OF THE REPLY NO. LUCIA/D-132/2010-11 DTD 16/03/2011 SUBMITTED BY THE PETITIONER. P6 : COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT, DTD 22/03/2011. P7 : COPY OF THE ORDER IN STA 847/2003 DTD 15/05/2004. P8 : COPY OF THE ORDER IN TRIBUNAL APPEAL NO.585/2004 DTD 11/11/2006. RESPONDENT'S EXHIBITS : NIL //TRUE COPY// P.A TO JUDGE. STU C.K.ABDUL REHIM, J. ----------------------------------------- W.P.(C) No.11509 of 2011 ----------------------------------------- Dated this the 12th day of April, 2011 J U D G M E N T ---------------------- Ext.P4 and P6 orders of assessments finalized against the petitioner under Section 17(3) of the Kerala General Sales Tax Act, 1963 (KGST Act), with respect to the years 2005-06 and 2006-07, are under challenge in this writ petition. Under normal circumstances this court may not be justified in entertaining challenge against the order of assessment, in view of the effective alternative remedy provided. But the orders of assessment are challenged in this case, specifically contending that there is patent violation of principles of natural justice and also violation of the mandatory procedure prescribed. It is pointed out that, before finalizing the impugned orders, the petitioner was issued with Ext.P1 and P5 pre-assessment notices, calling for objections. Ext.P2 and P5(a) are the objections filed by the petitioner to the pre-assessment notices. It is contended that the assessing authority had rejected those objections in a unilateral manner without affording any opportunity of personal hearing. Hence it is contended that the orders of assessment are unsustainable in the eye of law. W.P.(C).11509/11 -2- 2. On a perusal of Ext.P4 it is seen that, the assessing authority had admitted that the petitioner had filed detailed reply to the pre-assessment notices. But the assessing authority found that the contentions raised by the assessee in the reply deserves no consideration. Nothing is discernible from Ext.P4 & P6 with respect to any opportunity of hearing afforded before finalizing the assessment. 3. I am of the view that there is violation of the mandatory procedure prescribed under Section 17. The opportunity of hearing contemplated is not an empty formality. This court in an identical situation in Suzion Infrastructure Service Ltd. Vs. C.T.O. (2010 (3) KHC 299) held that non compliance of the requirement of personal hearing will vitiate the order of assessment. Learned Government Pleader appearing on behalf of respondents is also not in a position to dispute the factual situation. 4. Therefore the writ petition is allowed and Ext.P4 and P6 orders of assessment are hereby quashed. The 1st respondent is directed to consider the matter afresh, after affording a reasonable opportunity of hearing to the petitioner, and to finalise the assessment on the basis of such hearing to be conducted. W.P.(C).11509/11 -3- 5. The needful shall be done at the earliest and fresh orders shall be issued at any rate within a period of one month from the date of receipt of a copy of this judgment. C.K.ABDUL REHIM, JUDGE. okb