IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 7TH SEPTEMBER 2009 / 16TH BHADRA 1931 WP(C).No. 27175 of 2003(I) -------------------------- PETITIONER(S): --------------- TECHNO EQUIP COMPANY, 54, JOLLY MAKER CHAMBERS NO.2, 225, NARIMAN POINT, BOMBAY, REPRESENTED BY ITS RESIDENCE ENGINEER, SHRI.K.R.K.PRASAD. BY ADV. SRI.DEEPU THANKAN SMT.DEEPA DEEPU THANKAN RESPONDENT(S): --------------- 1. DEPUTY COMMISSIONER, COMMERCIAL TAXES, ERNAKULAM. 2. SALES TAX OFFICER, O/O THE DEPUTY COMMISSIONER, THEVARA, ERNAKULAM. GOVERNMENT PLEADER SRI.V.K. SHAMSUDHEEN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).27175/03 APPENDIX PETITIONER'S EXHIBITS:- EXT.P1:- COPY OF THE ASSESSMENT ORDER ISSUED BY THE ASSESSMENT OFFICER DT.15.2.09 EXT.P2:- COPY OF THE ORDER OF THE R1 DT.1.11.02 EXT.P3:- COPY OF THE ENVELOPE DT. NIL RESPONDENT'S EXHIBITS:- NIL okb //True Copy// P.A. to Judge C.K.ABDUL REHIM, J. ------------------------------ W.P.(C)No.27175 OF 2003 ------------------------------ Dated this the 7th day of September, 2009 J U D G M E N T ---------------------- 1. The challenge in this writ petition is against Ext.P2 order passed by the 1st respondent in exercise of powers under Section 35 of the Kerala General Sales Tax Act, 1963 (KGST Act), suo moto revising Ext.P1 assessment order of the year 1994-95. Ext.P1 assessment is dated 15.2.1999. Contention of the petitioner is that Ext.P2 order is issued after lapse of 4 years, the period of limitation stipulated under Section 35(2)(c) of the KGST Act. According to the petitioner, eventhough Ext.P2 is dated 1.11.2002 it is despatched to the petitioner only in the year 2003 and the same was received by the petitioner only on 9.8.2003 as evidenced by the postal cover enclosing the order, copy of which is produced as Ext.P3. Hence the contention is that the date of 1.11.2002 borne on Ext.P2 order is not real and it is a pre-date incorporated in order to escape the bar of limitation. 2. Heard the learned Government Pleader. In the counter affidavit of the respondents it is stated that after passing of Ext.P2 order the same was despatched to the petitioner by registered post with acknowledgment due on 6.11.2002 to its address at the site of Kochi Refineries Limited, Ambalamugal. W.P.(C).27175/03-I 2 But the same was returned unserved on 18.11.2002. Further the order was served by affixture at the last known address of the Manager of the petitioner company, Sri:K.R.K. Prasad, at “Saranya”, Chakkalamattam Road, North Fort Gate, Tripunithura on 4.1.2003. Hence according to the respondents the impugned proceedings was duly served at the time when it was pronounced, during November 2002 itself, as per the procedure contemplated for service of notices under the provisions of Section 55(B) of the KGST Act and Rule 63 of the KGST Rules. Hence the contention of the petitioner in this regard is unsustainable. 3. Learned counsel for the petitioner further contended that in order to come within the time limit stipulated under Section 35(2)(c), mere attempt to despatch the proceedings is not sufficient and the assessee should have been made available with copy of the order. In support of this contention he placed reliance on the decision of this Court in Government Wood Work Shop Vs. State of Kerala (1987 (1) KLT 804). The dictum laid therein is that mere making of the order, signing it and keeping it in the file is not enough, but it should be pronounced or published or the party affected has the means of knowing it. In the case at hand it is noticed that the petitioner was issued with notice in the suo moto proceedings and the representative of the petitioner was heard in the matter. W.P.(C).27175/03-I 3 Therefore it cannot be held that the petitioner was totally ignorant about the proceedings pending before the 1st respondent. From the counter affidavit it is evident that the proceedings was despatched by registered post in the address of the assessee borne out in the assessment records. It is pointed out by the learned Government Pleader that there is no evidence to the effect that the assessee had ever intimated change of address to the assessing authority. 4. From the facts stated above I am not inclined to hold that Ext.P2 order of revision was issued beyond the period of 4 years prescribed under Section 35(2)(c). Therefore the writ petition deserves no merit and the same is accordingly dismissed. 5. However it is made clear that dismissal of this writ petition will not in any way prejudice right of the petitioner to seek statutory remedy if any available under law, against Ext.P2 order. If any such statutory appeal or revision is filed and if the same is entertained under the provisions of law, then the authority concerned shall dispose of the matter untrammeled by any of the observations made in this Judgment. C.K.ABDUL REHIM, JUDGE. okb W.P.(C).27175/03-I 4