IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 11TH MARCH 2009 / 20TH PHALGUNA 1930 WA.No. 205 of 2009() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.22042/2008 Dated 24/07/2008 AND THE ORDER IN RP 1031/2008 APPELLANTS: RESPONDENTS IN WPC -------------------------------- 1. THE ASSISTANT COMMISSIONER (ASSESSMENT) II,COMMERCIAL TAXES, SPECIAL CIRCLE-III,ERNAKULAM 2. THE INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, KAKKANADAD,KOCHI-30. 3. THE DEPUTY COMMISSIONER (APPEALS) COMMERCIAL TAXES, ERNAKULAM. BY GOVERNMENT PLEADER SRI. V.K. SHAMSUDEEN RESPONDENT(S): PETITIONER WPC ----------------------------- M/S.HINDALCO INDUSTRIES LIMITED, ALUPURAM P.O. KALAMASSERY (FORMERLY INDIAN ALUMINUM CO.) REPRESENTED BY ITS VICE PRESIDENT E.C.JOSE. BY ADV. SMT. S.K. DEVI THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 11/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C .N. RAMACHANDRAN NAIR & K. SURENDRA MOHAN, JJ. -------------------------------------------- W. A. No. 205 OF 2009 -------------------------------------------- Dated this the 11th day of March, 2009 C.R. JUDGMENT Ramachandran Nair,J. Appeal is filed by the State challenging the judgment of the learned single Judge directing the assessing officer to issue notice of demand for the purpose of recovering the arrears as a defaulter and to enable the assessee to move for stay in appeal. We have heard Government Pleader appearing for the appellant and counsel appearing for the respondent. 2. The CST assessment of the respondent for the year 1998-99 was completed vide Annexure A1 dated 30.10.2002. Interest of Rs. 64,73,529/- is seen demanded from 1.5.1999 till date of completion of assessment. The respondent filed appeal against the said assessment and the appellate authority directed modification of the assessment order. Pursuant to the order in appeal, the assessing officer revised assessment vide Ext.P1 dated 31.1.2007. In the said order interest is 2 seen calculated from 7.3.2003 to 31.3.2007 and the total interest demanded is Rs. 47,94,137/-. However, the assessing officer later noticed that the assessment revised pursuant to the order in appeal vide Ext.P1 is not in accordance with the direction contained in the appellate order and therefore he issued Ext.P3 proceedings on 14.3.2008 rectifying the assessment and demanding interest in accordance with the direction contained in the appellate order from 1.5.1999 to March, 2008. The total interest demanded under the rectified order namely, Ext.P3, is Rs. 122,98,002/-. Even though respondent filed appeal against Ext.P3 order, the contention of the respondent is that recovery cannot be initiated as no demand notice was served along with rectified order and consequently respondent was not a defaulter. The learned single Judge accepted the contention of the appellant and directed the assessing officer to issue demand of notice for entertaining appeal and for enabling recovery after default. Even though State filed Review Petition, the same was dismissed by the learned single Judge. Consequently this appeal is filed against the judgment. 3. The case of the appellant is that while rectifying the 3 assessment order namely, Ext.P1, issued pursuant to the appellate order, the assessing officer rectified the demand notice issued as well and consequently there is no need to issue another demand notice. However, the contention of the respondent based on Section 3(1)(b) of the Kerala Taxation Laws (Continuation and Validation of recovery proceedings) act, 1967 is that since there is increase in the demand consequent upon modification or rectification of assessment, assessee is entitled to fresh notice of demand and in the absence of notice of demand assessee cannot be treated as defaulter for the purpose of levy of interest and for recovery. We are of the view that the question whether fresh notice of demand is required or not does not arise in this case because rectification proposed was not only for the assessment issued but also for the notice of demand issued. In fact respondent does not dispute that they were in receipt of notice of demand pursuant to original assessment and pursuant to revised order issued under orders of the appellate authority. The only question is whether fresh notice of demand should be issued once the revised order issued pursuant to appellate order is again rectified. In this case we notice 4 from Ext.P3 proceedings that the assessing officer besides rectifying the revised order, rectified the notice of demand as well by the following statement contained in Ext.P3 "the demand notice already issued is rectified to the above extent". There can be no doubt that the effect of this operative portion of the order is that the interest portion demanded in the notice of demand already issued will stand substituted by the amount referred to in the rectified order. The technical contention of the respondent that fresh notice of demand has to be served is not tenable because demand notice already issued is rectified by the assessing officer and the rectified order serves as a fresh notice of demand pursuant to rectified assessment order issued under Section 43 of the KGST Act. We are therefore of the view that the learned single Judge was in error in directing issue of fresh demand notice which is achieved by the assessing officer by rectifying the earlier notice of demand already issued. In other words, once the assessment is modified through rectification, it is upto the assessing officer to issue a fresh notice of demand in terms of rectified order or to rectify notice of demand already issued. If rectification is carried out to demand 5 notice, it has the effect of issuing fresh notice of demand and so much so there is no need to issue another notice of demand after rectifying the notice of demand already issue. Even though counsel for the respondent submitted that rectification was carried out without notice, we find that respondent's representative was present in the proceedings and therefore this contention raised is not tenable. We therefore allow the Writ Appeal by vacating the judgment of learned single judge and by holding that there is no necessity to issue fresh notice of demand in this case as rectification has the effect of issuing fresh notice of demand. Appellant is free to treat assessee as a defaulter and proceed for recovery if stay is not obtained and produced. (C.N.RAMACHANDRAN NAIR) Judge. (K. SURENDRA MOHAN) Judge. kk 6