IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 7TH SEPTEMBER 2011 / 16TH BHADRA 1933 WA.No. 1325 of 2011() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.21326/2011 Dated 05/08/2011 .................... APPELLANT(S): PETITIONER ------------------------ J.A.J.EQUIPMENTS INDUSTRIES, REP.BY MANAGING PARTNER, JEEVAN.C.I, INDUSTRIAL ESTATE,OLLUR,THRISSUR DISTRICT. BY ADV. SRI.M.K.DILEEP KUMAR RESPONDENT(S): RESPONDENTS -------------------------- 1. THE DEPUTY COMMISSIONER(APPEALS) DEPARTMENT OF COMMERCIAL TAXES,THEVARA, ERNAKULAM DISTRICT, PIN - 682 013. 2. THE COMMERCIAL TAX OFFICER, IVTH CIRCLE,DEPARTMENTS OF COMMERCIAL TAXES, THRISSUR,THRISSUR DISTRICT 680 004. MR.MOHAMMED RAFIQ, GOVERNMENT PLEADER THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. .................................................................... W.A.No.1325 of 2011 .................................................................... Dated this the 7th day of September, 2011. J U D G M E N T Ramachandran Nair, J. This Writ Appeal is filed against the judgment of the learned Single Judge declining to interfere with the assessment proceedings initiated against the appellant by issuing notice. The appellant's only case is that in the assessment addition has been made on account of alleged evasion of tax for which penalty is already levied. The appellant has filed appeal (wrongly filed as revision) against the penalty order, which is pending before the first appellate authority. Learned Government Pleader submitted that assessment cannot be kept pending until finality is achieved on penalty orders. Even though we find force in this contention, we feel at least first level contest should be over before assessment is finalised. Accordingly, we dispose of the Writ Appeal by modifying the judgment of the learned Single Judge as follows:- (1) There will be a direction to the 1st respondent to dispose of the appeal (wrongly shown as revision) filed against the W.A.No.1325/2011 2 penalty orders within a period of one month from the date of production of a copy of this judgment. (2) The appellant is directed to produce accounts for verification by the Assessing Officer. (3) However, the Assessing Officer will wait for six weeks for issuing pre-assessment notice and while issuing pre- assessment notice he should consider the order issued in appeal/revision filed against the penalty order. (4) The appellant will file reply to pre-assessment notice issued after disposal of the appeal (wrongly shown as revision) against penalty order, and even if penalty is sustained, the appellant is free to contest the same independently. However, the assessment can be completed after disposal of the penalty appeal by the 1st respondent, after considering the same along with the appellant's objection. This Writ Appeal is disposed of as above. (C.N.RAMACHANDRAN NAIR, JUDGE) (P.S.GOPINATHAN, JUDGE) jg