IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 1ST APRIL 2008 / 12TH CHAITHRA 1930 WP(C).No. 10905 of 2008(W) ------------------------------------- PETITIONER: ------------------ POABS GRANITE PRODUCTS PVT. LTD., CHULLY P.O., ANGAMALY, ERNAKULAM-683 581, REPRESENTED BY ITS MANAGING DIRECTOR, SRI.JOSEPH JACOB. BY ADV. SRI.N.JAMES KOSHY RESPONDENTS: --------------------- 1. THE ASSISTANT COMMISSIONER (AUDIT ASSMT.), DEPARTMENT OF COMMERCIAL TAXES, MATTANCHERRY AT MINI CIVIL STATION, ALUVA. 2. THE DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, ERNAKULAM. 3. THE INSPECTING ASSISTANT COMMISSIONER, COMMERCIAL TAXES, MATTANCHERRY, KOCHI. 4. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, COMMERCIAL TAXES, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SMT. ANU SIVARAMAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN, J. ----------------------------------- W.P.C.No.10905 of 2008 ------------------------------------ Dated this the 1st day of April, 2008 JUDGMENT Heard the learned counsel for the petitioner and the learned Special Government Pleader for taxes. 2. The petitioner challenges Ext.P10 proceedings of the Assistant Commissioner. In terms of Ext.P9, or even otherwise, the petitioner was to be heard following Exts.P3 and P4, also because the direction by the appellate authority was to verify the bills, agreements, work order etc. and identify the category of goods, to levy tax. 3. The impugned order has been issued without hearing the petitioner. The consideration of Ext.P11 appeal cannot be held back since the fundamental ground on which the petitioner stands is that he was not given opportunity of pre-decisional hearing before Ext.P10, the order impugned in Ext.P11 is issued. WPC10905/08 2 4. Under the aforesaid circumstances, even if Ext.P11 appeal is to be considered ultimately, the petitioner will have to be given an opportunity of pre-decisional hearing by the assessing authority. This means that any delay on account of Ext.P11 will only stultify recovery of tax. 5. For the aforesaid reasons, Ext.P10 modified assessment order is quashed and the first respondent is directed to rehear the petitioner and take a final decision within an outer limit of 45 days from the date of receipt of a copy of this judgment. The petitioner shall appear before the first respondent on 9.4.2008 for appropriate listing of the matter. In the nature of the order passed herein, Ext.P11 and Ext.P12 are closed as unnecessary and those proceedings will stand governed by this judgment. Obviously, there could be no recovery when revised assessment order is issued following this judgment. The writ petition is disposed of as above. THOTTATHIL B.RADHAKRISHNAN, JUDGE csl