IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 24TH FEBRUARY 2011 / 5TH PHALGUNA 1932 WP(C).No. 4327 of 2011(M) ---------------------------------------- PETITIONER(S): ------------------------- M/S.P.T.P.FUELS, POOCHIRA, PUDUPPARIYARAM, PALAKKAD, REPRESENTED BY ITS MANAGING PARTNER, BIJU.P. BY ADVS. SRI.N.MURALEEDHARAN NAIR, SMT.K.HYMAVATHY. RESPONDENT(S): --------------------------- THE COMMERCIAL TAX OFFICER, IST CIRCLE, PALAKKAD-678 001. BY SR. GOVERNMENT PLEADER SRI. C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.4327 of 2011 ------------------------------------------- Dated this the 24th day of February, 2011 J U D G M E N T ---------------------- Challenge in this writ petition is against Ext.P5 and P6 orders through which assessment under Section 25 (1) was finalised and penalty was imposed under Section 67(1) of the Kerala Value Added Tax Act, 2003 (KVAT Act), with respect to the year 2008-09. Eventhough remedy by way of statutory appeal is available against both the above said orders, the petitioner is challenging those orders in this writ petition on the specific ground that the orders are vitiated by non compliance of the mandatory procedure prescribed, as well as by violation of principles of natural justice. 2. Ext.P1 and P2 are the proposal notices issued with respect to finalisation of the matter. According to the petitioner, on receipt of Ext.P1 and P2, they have W.P.(C).4327/11 -2- submitted Ext.P3 and P4 objections before the respondents. It is stated that, without considering those objections, the impugned orders were issued with a pre-date of 31.1.2011. According to the petitioner, eventhough Ext.P5 and P6 are dated 31.1.2011, the same were actually issued only on 5.2.2011, as evident from Ext.P7 notice of demand, which was issued along with the said orders. Petitioner relies on the endorsements made on a local delivery book to contend that Ext.P3 and P4 objections were submitted at the office of the respondent on 1.2.2011. The petitioner also relies on a decision of this court in C.K. Sunny Vs. ASTO (2004 (12) KTR 360) to canvass the position that actual date of issuance of the order is the date on which the authority had left the matter from its control, and till such date the order cannot be deemed as issued. Contention of the petitioner is that since the objections were received before the date of issuance of the order it was obligatory on the part of the respondent to consider such objections and to pass orders on the basis of such objections. W.P.(C).4327/11 -3- 3. It is also contended that the time granted through Ext.P1 and P2 was too insufficient for the petitioner to submit proper reply and that, in view of the dictum laid in the decision cited supra, it was reasonable on the part of the respondent to allow two weeks time for filing objections. 4. Learned counsel for the respondent on the other hand contended that the impugned orders were issued on 31.1.2011 and merely because there was delay in despatching the orders, it could not be contended that the orders were issued only on a subsequent date. It is the case of the respondent that the objections as per Ext.P3 and P4 were not available at the time when the orders were issued by the respondent. 5. Considering the controversy as stated above, I take notice of the fact that the impugned orders were issued on the premise that the petitioner had failed to submit objections against the proposals. It is also evident from the facts of the case that Ext.P3 and P4 objections were submitted to the office of the respondent on 1.2.2011. W.P.(C).4327/11 -4- Under such circumstances I am of the view that interest of justice will be served if a reconsideration of the matter is directed for which it is remitted to the respondent. 6. Accordingly the writ petition is disposed of quashing Ext.P5 and P6. The respondent is directed to consider the matter and to pass fresh orders taking note of the objections raised under Ext.P3 and P4, after affording an opportunity of personal hearing to the petitioner. Needless to say that the petitioner shall be afforded with opportunity to produce Books of Accounts and other documents in support of his contentions. 7. Fresh orders in this regard shall be issued at the earliest possible, at any rate within a period of one month from the date of receipt of a copy of this judgment. Sd/- C.K.ABDUL REHIM, JUDGE. okb True copy P.A to Judge