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. 10572 of 2010(V) ---------------------------------------- PETITIONER(S): ----------------------- M/S.PERIYAR GRANITES (P) LTD. AIRAPURAM P.O., KEEZHILLAM, PERUMBAVOOR, REPRESENTED BY ITS DIRECTOR T.JACOB. BY ADV. MR.HARISANKAR V. MENON, SMT.MEERA V.MENON. RESPONDENT(S): -------------------------- 1. COMMERCIAL TAX OFFICER, 2ND CIRCLE, PERUMBAVOOR, 2. INTELLIGENCE OFFICER, SQUAD NO.III DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM. 3. DEPUTY COMMISSIONER (APPEALS), DEPARTMENT OF COMMERCIAL TAXES, ERNAKULAM. 4. INSPECTING ASST.COMMISSIONER, DEPARTMENT OF COMMERCIAL TAXES, MUVATTUPUZHA. R1 TO R4 BY GOVERNMENT 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: rs. P.R. RAMACHANDRA MENON, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C).No. 10572 of 2010 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 29th day of March, 2010 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ J U D G M E N T The petitioner is challenging Ext.P4 assessment order passed by the 1st respondent, allegedly without any regard to the direction given by this Court, vide Ext.P3 judgment. The petitioner was mulcted with the liability to satisfy the penalty vide Ext.P1 order, which was subjected to challenge by way of appeal. Before finalisation of the proceedings as above, steps were taken to have the 'assessment' finalised, under which circumstance, the petitioner approached this Court, by filing W.P.(C).No.1588/2010, which was disposed of as per judgment dated 18.1.2010 as borne by Ext.P3. This Court directed the 1st respondent to finalise the 'assessment', only after the finalisation of the appeal, in respect of the 'penalty'. The case of the petitioner is that a copy of the judgment was obtained on 20.1.2010 and the same was W.P.(C).No. 10572 of 2010 2 produced before the 1st respondent on the very next day against proper acknowledgment. It is contended in the writ petition that, the 1st respondent, so as to avoid the direction given by this Court vide Ext.P3, passed Ext.P4 the 'assessment order' showing a 'prior date' as 13.1.2010 and copy of the said order was forwarded to the petitioner only on 21.1.2010 as discernible from the postal seal affixed on the cover addressed to the petitioner. 2. The learned counsel for the petitioner submits that, in the meanwhile, the appeal filed against Ext.P1 order imposing penalty was finalised as per Ext.P5, whereby the impugned order (Ext.P1) was set aside. This being the position, the course pursued by the 1st respondent is not correct or proper and the impugned order (Ext.P4) is liable to be set aside, submits the learned counsel. 3. The learned Government Pleader submits that, the averments raised by the petitioner, referring to the course W.P.(C).No. 10572 of 2010 3 pursued by the particular Officer who passed Ext.P4, showing the date of the order as 13.1.2010, thus intending to give a 'pre-date' is not correct or sustainable and that the demand notice forming part of Ext.P4 was issued after passing the assessment order and seeks to sustain the same. 4. It is very much evident from Ext.P4 assessment order passed by the 1st respondent, that even though the said order is dated 13.1.2010, the concerned Officer has subscribed her signature to the said order only on '18.1.2010'. This clearly shows that, the order was not passed on 13.1.2010 or any subsequent date till 18.1.2010, on which day, Ext.P3 judgment was passed by this Court. The said verdict was passed by this Court very much after hearing the learned Government Pleader as well, who entered appearance on behalf of the 1st respondent. This being the position, this Court finds that there is considerable force in the pleadings and submissions from the part of the petitioner, as to the course W.P.(C).No. 10572 of 2010 4 and events pursued by the 1st respondent, which is liable to be enquired by the departmental authorities. 5. Considering the above facts and circumstances and since Ext.P1 order imposing penalty has already been set aside by the 3rd respondent vide Ext.P5, this Court does not find it necessary to relegate the petitioner to avail statutory remedy, by way of appeal challenging Ext.P4. Accordingly, Ext.P4 is set aside and the 1st respondent is directed to reconsider the matter in accordance with law, after giving an effective opportunity of hearing to the petitioner, which shall be finalised as expeditiously as possible, at any rate, within 2 months from the date of receipt of a copy of this Judgment. 6. The 3rd respondent or such other higher authority, as the case may be, shall call for an explanation from the concerned Officer, who passed Ext.P4, showing the date as '13.1.2010' and subscribing her signature to the same only on '18.1.2010', to see whether any further departmental W.P.(C).No. 10572 of 2010 5 proceedings should be pursued in this regard and shall act in accordance with law; if the explanation is not satisfactory. 7. The writ petition is disposed of as above. The Registry shall forward a copy of this judgment directly to the 3rd respondent, for further steps. P.R. RAMACHANDRA MENON JUDGE nl