IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 8TH APRIL 2010 / 18TH CHAITHRA 1932 WP(C).No. 35861 of 2009(C) -------------------------- PETITIONER(S): --------------- T.V.MURALI,S/O.VELAYUDHAN, THAIVALAPPILL HOUSE,VARADIYAM,THRISSUR DISTRICT. BY ADV. SRI.M.K.DILEEP KUMAR RESPONDENT(S): --------------- 1. COMMERCIAL TAX OFFICER (WC & LT), DEPARTMENT OF COMMERCIAL TAXES,THRISSUR. 2. THE INTELLIGENCE OFFICER,SQUAD NO.3, DEPARTMENT OF COMMERCIAL TAXES,THRISSUR. 3. INSPECTING ASSISTANT COMMISSIONER, DEPARTMENT OF COMMERCIAL TAXES,THRISSUR. GOVERNMENT PLEADER SRI.C..K.GOVINDAN FOR R1TO3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/04/2010, ALONG WITH WPC NO. 36471 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMACHANDRA MENON, J. ------------------------ W.P.(C)Nos.35861 & 36471 OF 2010 ------------------------ Dated this the 8th day of April, 2010 JUDGMENT Petitioner in both these cases is one and the same. In W.P. (C) No.36471/2010, the petitioner is challenging Ext.P3 order passed by the first respondent fixing a liability of more than Rs.1,00,000/- upon the shoulders of the petitioner. The main ground of challenge is that the petitioner was never given an opportunity of hearing while finalising the assessment, which is very much discernible from the impugned order itself. The learned counsel for the petitioner submits that the petitioner requested for 15 days' time to produce the books of account, as the Accountant of the petitioner was not doing well, which however was arbitrarily rejected and the matter was finalised, which sought to be intercepted by this Court. 2. With regard to the issue involved in W.P.(C) No.35861/2009, the learned counsel for the petitioner submits that the petitioner has already filed an application for the benefit of the Amnesty Scheme, which however was not considered favourably and Ext.P2 order was passed stating that the WPC NO. 35861 & 36471/2010 -2- petitioner had not included in the application the penalty to the tune of Rs.1,33,34,076/- imposed upon him in the concerned application, which issue however is pending in revision before the Deputy Commissioner. Pursuant to Ext.P3 judgment passed by this Court, the Deputy Commissioner, has now finalised the Revision Petition preferred by the petitioner allowing the same and the entire liability has been wiped off. This being the position, there is absolutely no hurdle to consider the application preferred by the petitioner for the benefit of Amnesty Scheme submits the learned counsel. 3. Heard the learned Government Pleader appearing for the respondents as well. 4. Going by the contents of Ext.P3 impugned in W.P.(C) No.36471/2009, absolutely no reason has been stated by the Assessing Officer for proceeding with the matter without granting the benefit of adjournment of 15 days to produce the books of accounts, except that the amount relates to the year 2004 – 05. The observation of the Assessing Officer is that he presumed that the request was not genuine. There is absolutely no basis for such presumption and there is no observation that WPC NO. 35861 & 36471/2010 -3- the adjournment sought for was to protract the matter or to cause any prejudice or loss to the respondents/Revenue in any manner. That apart, but for mentioning that the amount related to the year 2004 – 05, what could have been the hardship or loss to be caused to the Revenue if adjournment was given by 15 days, as sought for, which is not adverted to by the Assessing Authority while passing Ext.P3. This Court finds that the petitioner has been virtually prevented from producing the books of account and substantiate the facts and figures, especially when the liability now imposed upon him is of more than Rs. One Crore. 5. It appears that Ext.P3 has been passed under Section 17D of the KGST Act, though the provision under which the assessment has been made is not specifically mentioned in Ext.P3. Names of three different officers are mentioned on the top of Ext.P3 order, which persuades this Court to arrive at such an inference. The law is well settled that such an assessment can be fianlsied only by a team consists of four members'. The course and procedure to be pursued with regard to the assessment under Section 17D has been made clear by this Court WPC NO. 35861 & 36471/2010 -4- as per the decision reported in Hindustan Petroleum Corporation Ltd. v. Assistant Commissioner Commercial Taxes & Others (2009 (4) KHC 819). For this reason also Ext.P3 is not sustainable. 6. In the above circumstances, Ext.P3 is set aside and the concerned authority is directed to reconsider the matter and finalise the assessment in accordance with law, after giving an opportunity of hearing to the petitioner as expeditiously as possible, at any rate within on month from the date of receipt of a copy of this judgment. The recovery proceedings shall be kept in abeyance till such time. 7. With regard to the case projected by the petitioner in W.P.(C) No.35861/2009, since the hurdle as specified in Ext.P2 is over, the application preferred by the petitioner for availing the benefit under the Amnesty Scheme is liable to be considered. The learned Government Pleader submits that 'fresh scheme' is likely to be notified shortly and in such circumstances, the petitioner could file a fresh application for availing the benefits in tune with the norms under that Scheme. 8. In the above circumstances, the petitioner is permitted WPC NO. 35861 & 36471/2010 -5- to file a fresh application forthwith, if so advised. The application preferred by the petitioner for the benefit of the Amnesty Scheme, shall be considered and appropriate orders shall be passed as expeditiously as possible, at any rate, within two weeks from the date of receipt of a copy of the application to be filed by the petitioner. The Writ Petitions are disposed of as above. P.R.RAMACHANDRA MENON, JUDGE. dpk