By Advs. Sri.harisankar v. Menon

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 1ST NOVEMBER 2010 / 10TH KARTHIKA 1932 WP(C).No. 33038 of 2010(D) -------------------------- PETITIONERS: --------------------- A.M.ABDUL HAMEED, M/S.ARAFA TRADERS, SULTHAN BATHERY, WAYANAD DISTRICT. BY ADVS. SRI.HARISANKAR V. MENON SMT.MEERA V.MENON SRI.MAHESH V.MENON RESPONDENTS: ---------------------- 1. AGRICULTURAL INCOME TAX AND COMMERCIAL TAX OFFICER, VAT CIRCLE, SULTHAN BATHERY 28. 2. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, KERALA GOVT.SECRETARIAT, THRIUVANANTHAPURAM 01. BY SENIOR GOVERNMENT PLEADER, SRI.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K. ABDUL REHIM, J------------------------------ WP(C) NO. 33038 OF 2010------------------------------------- Dated this the 1[st] day of November, 2010 JUDGMENT Petitioner is a registered dealer engaged in trading of hill produces. With respect to the years 1999-'00 to2002-'03 penalty was imposed on the petitioner underSection 45 A of the Kerala General Sales Tax Act (KGSTAct). The petitioner had taken up the matter in appealsbefore the Deputy Commissioner. But during pendencyof the appeals, the petitioner had opted for payment ofthe amount under the 'Amnesty Scheme' and the firstrespondent had initially permitted such payment.Subsequently, through an order dated 29.06.2010, theamnesty benefit granted to the petitioner was cancelled,taking a view that the amnesty benefit can be allowedonly if assessments are also completed and only if thepetitioner is ready to settle both the tax amount as well aspenalty. WP(C) No. 33038/2010 2.Cancellation of the amnesty order was subjectmatter of challenge before this Court, which culminated inExt.P1 judgment. This Court recorded submission of theGovernment Pleader that the assessment will be completedwithin the shortest time possible. Taking note of the factthat the Amnesty Scheme was extended till 30.09.2010, thisCourt directed the first respondent to finalise theassessment within a period of one month. Liberty was givento the petitioner to prefer application for allowing benefitsunder the Amnesty Scheme, after settlement of theassessment, with respect to both the liability.Subsequently, the first respondent approached this Courtseeking extension of the time stipulated in Ext.P1 judgment.Through Ext.P2 order this Court extended the time limit till01.11.2010. Exts.P3 and P4 series are the proposal noticesissued subsequent to Exts.P1 and P2, under the provisionsof the KGST and CST Act respectively. In the said notices,the petitioner was requested to submit objections against WP(C) No. 33038/2010 proposal on or before 29.10.2010 at 11 a.m. The petitionerwas also afforded with an opportunity of hearing on thatdate. 3.It is stated that Exts.P3 and P4 series noticeswere served on the petitioner only on the evening of27.10.2010. That means time stipulated for filing objectionsand for personal hearing is only about 48 hours from thereceipt of such notices. On receipt of the notices, thepetitioner submitted Ext.P5 request narrating the abovefacts and seeking further time for filing objections. Thepetitioner also requested for supply of copies of fourdocuments, upon which reliance was placed by the firstrespondent for finalising the assessment under Section 19C. Apprehension of the petitioner is that without takingnote of the request the first respondent may issue orders ofassessment, since the time stipulated in Ext.P2 is expiringon 01.11.2010. 4.When the matter came up for consideration on WP(C) No. 33038/2010 4.When the matter came up for consideration on WP(C) No. 33038/2010 29.10.2010 the Government Pleader was directed to getinstruction and to inform the first respondent not to finalisethe assessment. It is conceded by learned GovernmentPleader that Exts.P3 and P4 series notices were served onthe petitioner only on 27.10.2010. Therefore it is evidentthat sufficient opportunity for filing effective objections wasnot afforded to the petitioner. The petitioner had also madespecific request for supplying copies of four documentsupon which reliance was placed. Principles of naturaljustice demands issuance of copies of such documents forfacilitating the petitioner to submit effective objections. 5.Under the above mentioned circumstances, I amof the view that the first respondent need be directed toprovide reasonable opportunity to the petitioner beforefinalising the assessment. 6.In the result, the Writ Petition is disposed ofdirecting the first respondent to consider Ext.P5 requestand to take a decision thereof regarding supplying copies of WP(C) No. 33038/2010 the documents as requested. The petitioner shall beafforded with sufficient opportunity for filing objections,after proposal of Ext.P5. Needless to say that an effectiveopportunity of hearing also should be provided after filing ofthe objections. 7.Fresh orders of assessment shall be issued aftercomplying with all the procedures prescribed underrelevant provisions and after due compliance of principlesof natural justice, taking note of the directions as above, atthe earliest possible. dnc C.K. ABDUL REHIMJUDGE