IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR FRIDAY, THE 5TH DECEMBER 2008 / 14TH AGRAHAYANA 1930 OP.No. 11936 of 2001(U) ----------------------- PETITIONER(S): --------------- S.MUHAMMED SALIM, AMAN APPARELS CORPORATION, M.M.ALI ROAD, KOZHIKODE. BY ADV. SRI.N.MURALEEDHARAN NAIR SRI.V.K.SHAMUSUDHEEN RESPONDENT(S): --------------- ADDL. SALES TAX OFFICER, IIIRD CIRCLE, KOZHIKODE. BY G.P. SRI.TEKCHAND THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 05/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP NO.19036/2001 IN O.P. NO.11936/2001 DISMISSED: 5.12.2008 SD/-(C.N.RAMACHANDRAN NAIR, JUDGE.) APPENDIX PETITIONER'S EXHIBITS: P1: TRUE COPY OF ASSESSMENT ORDER PASSED BY RESPONDENT DT.4.12.95 FOR THE YEAR 94-95. P2: TRUE COPY OF REVISED ASSESSMENT ORDER PASSED BY RESPONDENT DT.5.3.1996 FOR THE YEAR 94-95. P3: TRUE COPY OF ORDER OF ADDL. APP. ASST. COMMISSIONER, AIT & ST. KOZHIKODE DT.20.6.96. P4: TRUE COPY OF ORDER OF THE SALES TAX APPELLATE TRIBUNAL, ADDL. BENCH, KOZHIKODE IN T.A. NO.242/1996 & C.O. 59/96 DT.29.8.2000. P5: TRUE COPY OF REVISED ASSESSMENT ORDER PASSED BY RESPONDENT FOR THE YEAR 94-95 DT.1.1.2001. P6: TRUE COPY OF DEMAND NOTICE ISSUED BY RESPONDENT DT.3.1.2001. TRUE COPY PA TO JUDGE C.N.RAMACHANDRAN NAIR, J. .................................................................... O.P. No.11936 of 2001 .................................................................... Dated this the 5th day of December, 2008. JUDGMENT The petitioner is challenging Ext.P5 which is a revised assessment order issued by the Assessing Officer for the year 1994-95 giving effect to orders of the first appellate authority and that of the Tribunal in second appeal. The grievance is only to the extent of denial of exemption on the first Rs.10 lakhs turnover of readymade garments. According to the petitioner, though exemption was not considered or granted vide original assessment issued as Ext.P1, the same was in fact granted through rectification of the assessment vide Ext.P2 order. It is seen that exemption is granted based on Notification SRO 658/94 which provides for exemption on readymade garments on the first Rs.10 lakhs turnover. According to Government Pleader, exemption is available only in the first year and thereafter if the turnover is above Rs.10 lakhs, dealer will not be entitled to exemption. His case is that petitioner ceased to be entitled for the benefit for the year 1994-95 because in the previous year namely 1993-94, his turnover exceeded Rs.10 lakhs and in that year exemption was granted upto Rs.10 lakhs. However, these facts are not borne out by the records of the 2 case pertaining to this year. Counsel for the petitioner rightly contended that while giving effect to orders in appeal, relief granted in original assessment cannot be taken away. However, it is seen from Ext.P5 that there is no discussion about the petitioner's eligibility for benefit under notification SRO 658/95. It is not known whether Ext.P2 proceedings issued on 5.3.1996 was again rectified withdrawing the benefit and if so, the order issued vide Ext.P5 is perfectly in order. On the other hand if exemption granted vide Ext.P2 was not withdrawn through separate proceeding, then the officer cannot deny the benefit to the petitioner without recalling Ext.P2 or atleast after issuing notice to the petitioner stating the provision under which exemption is withdrawn, give opportunity to the petitioner to file objection and then to pass orders. Since the facts are not borne on record, the O.P. is disposed of directing the Assessing Officer to verify whether Ext.P2 was further rectified taking away the benefit and if so, Ext.P5 will stand confirmed. On the other hand if exemption upto Rs.10 lakhs granted vide Ext.P2 has become final and the same not being subject matter of appeal, the Assessing Officer can withdraw the proceedings only in accordance with the procedure prescribed under the Act. The Assessing 3 Officer is directed to reconsider the matter and pass orders within three months from date of production of copy of this judgment. C.N.RAMACHANDRAN NAIR Judge pms