IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 16TH DECEMBER 2009 / 25TH AGRAHAYANA 1931 WP(C).No. 36374 of 2009(N) -------------------------- PETITIONER(S): --------------- ROHINI INDUSTRIAL ELECTRICALS LTD., V/67, KOLLAMPADIYATH SHOPPING COMPLEX, ROOM NO.1, THIRUVANKULAM, IRUMPANAM, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER & MANAGING DIRECTOR MR.PRASANT KANDOI. BY ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.P.GOPINATH MENON SRI.V.J.ANAND RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. THE COMMISSIONER OF COMMERCIAL TAXES, OFFICE OF THE COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM. 3. THE COMMERCIAL TAX OFFICER, (WORDS CONTRACT), OFFICE OF THE DEPUTY COMMISSIONER OF COMMERCIAL TAXES, ERNAKULAM, KOCHI-682 015. GOVERNMENT PLEADER SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.36374 OF 2009 ------------------------------ Dated this the 16th day of December, 2009 J U D G M E N T ---------------------- 1. Ext.P4 assessment is under challenge, without resorting to remedy by way of appeal. Petitioner is a registered dealer, who is a works contractor took registration only on 4.12.2008. With respect to the quarter ending on 31.12.2008 the petitioner filed nil return as no payment was received from the awarder during the said period. There was failure on the part of the petitioner to file return with respect to the next quarter ending on 31.3.2009, within the time stipulated. Since no return was filed, the 3rd respondent had issued Ext.P2 notice proposing to finalise the assessment on best judgment basis. It is evident from Ext.P4 order of assessment now issued that, the notice sent through registered post in the address of the petitioner was returned unserved with endorsement, “addressee left”. Thereafter the notice was served on the authorised representative of the petitioner. But without filing any objection to the proposal, the petitioner had sought for one week time to file return. Since return was not filed within the time sought for, the assessment was completed. 2. On a perusal of Ext.P4 it is revealed that the assessing authority had considered the entire contract amount revealed W.P.(C).36374/09-N 2 from Form 10B as taxable turnover and 50% of the said amount was added towards probable omissions and suppressions. According to the petitioner he had filed return for the quarter ending on 31.3.2009 as per Ext.P3, through the e-filing system, which is electronically acknowledged on 23.11.2009. It is stated that the impugned order Ext.P4 was served on the petitioner only on the same day of 23.11.2009. Since the assessment is made totally on a presumptive basis on the basis of allegation of non-filing of return and since the return has already been filed, the petitioner seeks to quash Ext.P4 and also seeks direction to the authority to finalise the assessment afresh, after taking into consideration of the return already filed. 3. Learned Government Pleader appearing on behalf of the respondents contended that there is a clear failure on the part of the petitioner in filing the return and further they have also failed to raise any objection against the proposal for finalisation of the assessment nor they have filed the return within the time as promised after receipt of the proposal. Hence it is contended that correctness of Ext.P4 need not be considered in this writ petition in view of remedy available to the petitioner by way of appeal. 4. It is noticed that the assessment under Ext.P4 is finalised only because the petitioner had not filed return for the quarter ending on 31.3.2009. It is further evident that in fact W.P.(C).36374/09-N 3 the petitioner had filed returns for the relevant period, though after finalisation of Ext.P4. The turnover adopted in Ext.P4 is the total contract amount, whereas the work is still on going. Further 50% addition is made on the total contract amount which is taken as turnover with respect to the particular quarter, without any basis. Since finalisation of assessment on the basis of return or on the basis of verification of books of accounts is the proper method, I am of the opinion that even if an appeal is filed under Ext.P4, the matter will be remanded to the assessing authority. Hence in order to avoid multiplicity of proceedings, considering the peculiar facts and circumstances of the case, I am of the opinion that a direction to the assessing authority for fresh consideration of the matter in view of the return already filed will meet the ends of justice. 5. Accordingly the writ petition is disposed of quashing Ext.P4. The 3rd respondent is directed to finalise the assessment afresh after taking note of Ext.P3 return filed and after affording an opportunity of hearing to the petitioner. Fresh orders in this regard shall be issued as early as possible, 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