Wa/2768/2007 Of P.c.thahir v. The Agricultural Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE K.M.JOSEPH THURSDAY, THE 22ND NOVEMBER 2007 / 1ST AGRAHAYANA 1929 WA.No. 2768 of 2007 --------------------- AGAINST THE JUDGEMENT IN WPC.30888/2007 Dated 18/10/2007 .................... APPELLANT/PETITIONR: ----------------------------------- P.C. THAHIR, KANHIRANDY TRADERS, S.BATTERY. BY ADV. SRI.PREMJIT NAGENDRAN SRI.P.REGHUNATH RESPONDENTS/RESPONDENTS: --------------------------------------------- 1. AGRICULTURAL INCOME TAX & COMMERCIAL TAX OFFICER, S.BATTERY. 2. THE GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, WAYANAD AT KALPETTA. 3. DEPUTY COMMISSIONER, DEPARTMENT OF COMMERCIAL TAXES, KOZHIKODE. 4. INSPECTING ASSISTANT COMMISSIONER, WYNAD. BY SR. GOVT. PLEADER SRI. MUHAMMED RAFIQ. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22/11/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L. DATTU, CJ. & K.M. JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - WRIT APPEAL No. 2768 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - -Dated this the 22nd day of November, 2007. JUDGMENT H.L.DATTU, CJ, Questioning the correctness or otherwise of the order passed bythe learned Single Judge in W.P.(C) No.30888 of 2997 dated 18[th] October,2007, the petitioner in the writ petition has filed the present appeal.2. By the impugned order, the learned Single Judge infact hasgranted more relief than the petitioner expected. 3. In the writ petition filed, the petitioner, who is a dealer, hadcalled in question the order passed by the Deputy Commissioner of CommercialTaxes in exercise of his powers under Section 35 of the Kerala General SalesTax Act ('KGST Act' for short) (Ext.P4) and the consequential order passed bythe assessing authority for the assessment year 1999-2000 dated 24.3.2007(Ext.P6). 4. The consequential relief that was asked is to quash therevenue recovery notice issued by the Recovery Officer pursuant to the order ofassessment passed. 5. If for any reason, the petitioner was aggrieved by Ext.P4 orderpassed by the Deputy Commissioner of Commercial Taxes in exercise of hispowers under Section 35 of the KGST Act, the petitioner ought to havequestioned the correctness or otherwise of the said order before the Tribunal.That has not been done by the assessee for the reasons best known to him. 6. In Ext.P4 order the Deputy Commissioner of CommercialTaxes had directed the assessing authority to pass a fresh order of assessmentfor the assessment year 1999-2000 after affording an opportunity of hearing tothe petitioner. The assessing authority, after giving such an opportunity, hasnow passed the assessment order for the assessment year 1999-2000 dated24.3.2007. Petitioner, being aggrieved by the said orders of assessment, hasquestioned the correctness or otherwise of the same before the First AppellateAuthority. Yet again, for the reasons best known to him, the petitioner has notfiled any application before the First Appellate Authority for grant of any interimprayer. 7. Since the assessment order is already passed, theconsequential demand notice is issued by the assessing authority. We cannottake exception to the consequential demand notice for the sole reason thatonce an order of assessment is passed, it is expected of the assessing authorityto issue a demand notice to recover the amounts due under the assessmentorder. 8. The learned Single Judge, taking a very sympathetic view ofthe matter has only directed the petitioner to pay quantified tax liability and 50%of the interest demanded. 9. Having gone through the order passed by the learned SingleJudge and also the facts and circumstances pleaded in the case, we are of thefirm opinion that the learned Single Judge has not committed any error 7. Since the assessment order is already passed, theconsequential demand notice is issued by the assessing authority. We cannottake exception to the consequential demand notice for the sole reason thatonce an order of assessment is passed, it is expected of the assessing authorityto issue a demand notice to recover the amounts due under the assessmentorder. 8. The learned Single Judge, taking a very sympathetic view ofthe matter has only directed the petitioner to pay quantified tax liability and 50%of the interest demanded. 9. Having gone through the order passed by the learned SingleJudge and also the facts and circumstances pleaded in the case, we are of thefirm opinion that the learned Single Judge has not committed any error whatsoever, which would call for our interference. Accordingly, the Writ Appealrequires to be rejected and it is rejected. Ordered accordingly. H.L. DATTU, CHIEF JUSTICE sb/DK. K.M. JOSEPH, JUDGE