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2011 DIGILAW 612 (KER)

SHIBU VARGHESE v. COMMERCIAL TAX OFFICER

2011-06-21

C.K.ABDUL REHIM

body2011
JUDGMENT Petitioner is challenging assessment finalised against him through Ext. P5 order, for the year 2007-08, under Section 25(1) of the Kerala Value Added Tax Act, 2003 (KVAT Act). The order of assessment is challenged without resorting to statutory remedy of appeal provided, on the basis of a specific contention that the order in question was issued in violation of mandatory procedure prescribed under the relevant provisions and also in violation of principles of natural justice. According to the petitioner, before finalising the assessment, a proposal notice was issued as evidenced from Ext. P2. It is stated that the said notice was received by the petitioner on 8.2.2011 and the requirement in the said notice was to file objections if any within 7 days of the receipt of the said notice. It is stated that the petitioner had filed an application seeking adjournment for a period of three weeks to file detailed reply. Ext. P3 is the copy of the said application, which is seen dated as 16.2.2011. According to the petitioner, thereafter he had submitted objections, as evidenced from Ext. P4, on 7.3.2011. But two days thereafter (on 9.3.2011), copy of Ext. P5 order of assessment was served on the petitioner, which is seen dated as 3.3.2011. Contention of the petitioner is that the adjournment application submitted on 16.2.2011 was accepted by the 1st respondent and the three weeks time allowed will expire only on 9.3.2011. Therefore, the petitioner had submitted the objections within the time allowed. It is contended that the assessment was finalised without considering the objections, putting a pre-date thereon. Heard; learned Government Pleader appearing for the respondents. It is contended that the assessment was finalised after affording reasonable opportunity to the petitioner to submit objections. Since the petitioner had failed to submit any objections, the assessing authority had finalised the assessment on a best judgment basis. There is no violation of any of the mandatory procedure prescribed, nor there is any violation of principles of natural justice, is the contention. On a perusal of Ext. P5 it is evident that, the assessing authority had admitted that the proposal notice was served on 8.2.2011 and that the petitioner had submitted a letter seeking time of three weeks for filing reply. But it is not discernible as to whether the assessing authority had permitted such time or not. On a perusal of Ext. P5 it is evident that, the assessing authority had admitted that the proposal notice was served on 8.2.2011 and that the petitioner had submitted a letter seeking time of three weeks for filing reply. But it is not discernible as to whether the assessing authority had permitted such time or not. However, it is seen that the assessment was finalised observing that no reply was filed till the date of passing of the order. If the assessee had submitted any request seeking time for filing objections, the assessing authority is at an obligation either to allow it or to reject it. Once it is admitted that the adjournment application was received, it is not justified on the part of the assessing authority to finalise the assessment, without considering such application and without rejecting the same. In the case at hand it is evident that, the assessment was finalised without considering the objections raised by the petitioner. Contention of the petitioner is that, he was under a reasonable belief that he has got time till three weeks from the date of submission of the adjournment application. Considering the facts and circumstances, I am of the view that, interest of justice will be served if the 1st respondent is directed to consider the objection and to finalise the assessment afresh, after affording an opportunity of hearing to the petitioner. Therefore, the writ petition is allowed and Ext. P5 order is hereby quashed. The 1st respondent is directed to consider Ext. P4 objections submitted by the petitioner and to finalise the assessment afresh, after taking note of the contentions raised therein, and after affording an opportunity of personal hearing. Needless to say that, the petitioner shall also be provided with adequate opportunity to produce documents and books of accounts in support of the contentions raised. Fresh orders in this regard shall be issued by the 1st respondent, as early as possible, at any rate within a period of one month from the date of receipt of a copy of this judgment.