Allowed

A.Arun v. the Intelligence Officer

Kerala HC15 Dec 2010WP(C)/32397/2010

Case brief

AI extract

What is this about?

In this writ petition, the Kerala High Court quashed an assessment order issued under Section 17D of the Kerala General Sales Tax Act. The Court found that the department failed to issue a mandatory proposal notice and denied the petitioner an opportunity for a personal hearing, violating natural justice directives.

What did the court decide?

The impugned assessment order (Ext.P3) is quashed. The respondent is directed to issue a fresh proposal notice and afford an opportunity for personal hearing before finalizing the assessment.

A.Arun Vs the Intelligence Officer — Income Tax | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM

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WEDNESDAY, THE 15TH DECEMBER 2010 / 24TH AGRAHAYANA 1932

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WP(C).No. 32397 of 2010(Y)

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--------------------------

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PETITIONER:-

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------------------

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SRI. A.ARUN, S/O. SRI. APPUKUTTAN, RESIDING AT AYANIKUZHIYIL HOUSE, VILABHAGOM, NEDUNGANDA.P.O., VARKALA, TRIVANDRUM DISTRICT. (EX-PROPRIETOR, ETTUMANOORAPPAN ENTERPRISES, SIVA BUILDING, H.S.ROAD, KAZHAKKUTTAM,TRIVANDRUM).

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BY ADV. SRI.A.KUMAR

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RESPONDENTS:-

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1. THE INTELLIGENCE OFFICER, SQUAD NO.II, COMMERCIAL TAXES, TRIVANDRUM AT ATTINGAL.

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2. THE FAST TRACK ASSESSMENT TEAM NO.IV, HEADED BY THE INSPECTING ASST. COMMISSIONER(INT) COMMERCIAL TAXES, TRIVANDRUM.

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3. THE DEPUTY COMMISSIONER (APPEALS), COMMERCIAL TAXES, TRIVANDRUM.

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4. THE DEPUTY TAHSILDAR (R.R), CHIRAYINKOZH TALUK, TRIVANDRUM.

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5. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM.

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BY SR.GOVT.PLEADER SRI.C.K.GOVINDAN.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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C.K.ABDUL REHIM, J.

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= = = = = = = = = = = = = = WP(C).No.32397 of 2010-Y.

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= = = = = = = = = = = = = =

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Dated this the 15^th day of December, 2010.

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J U D G M E N T

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Challenge in this writ petition is against Ext.P3 order of assessment and consequent revenue recovery steps initiated for realising amounts covered under Ext.P3. The petitioner praying for an early disposal of Ext.P4 appeal also.

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It is noticed that, against Ext.P2 order imposing penalty under Section 45A of the Kerala General Sales Tax Act, the petitioner had preferred appeal as per Ext.P4, which was pending disposal before the 3^rd respondent. It is now reported that the 3^rd respondent had already disposed Ext.P4 appeal. Therefore, the relief sought for in that regard no more survives for consideration.

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Ext.P3 order issued under Sec.17D of the KGST Act is challenged on the ground that the 2^nd respondent had not complied with the mandatory procedure contemplated

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WP(C).No.32397/2010-Y.

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under the Statute while finalising the assessment. Specific contention is that the impugned order of assessment was completed without adhering to principles of natural justice. According to the petitioner, before finalising the assessment no proper notice intimating the proposal was issued to him. It is evident from the impugned order that the proposal notice was not served on the petitioner. In fact the proposal notice was returned with postal endorsement as 'not known'. It is stated that the proposal notice was not attempted to be served on the petitioner, since it was send only in the address of the business place, which remained closed.

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Learned Government Pleader, on the basis of instructions, submitted that in fact the proposal notice was also sent to the residential address of the petitioner. But, it is contended that there was some mistake in the address and it was returned unserved since the petitioner could not be located from the address given. It was further noticed

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WP(C).No.32397/2010-Y.

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that before passing Ext.P3 order, the 2^nd respondent had not issued any proper notice affording opportunity of personal hearing to the petitioner.

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Under the above circumstance, I am of the view that Ext.P3 order was issued in violation of the mandatory procedures contemplated under the Statute and in violation of the principles of natural justice. Accordingly, I find that Ext.P3 is not sustainable in the eye of law.

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In the result, the writ petition is allowed to the extent of quashing Ext.P3. The 2^nd respondent will issue the proposal notice to the petitioner in the address given in this writ petition, with opportunity afforded to him to file objections within a reasonable time. Needless to say that the assessment shall be finalised only after affording an opportunity of personal hearing, after submission of objections by the petitioner. It is left open to the respondent to finalise the assessment either under Sec.17D or under Sec.17(3) of the KGST Act.

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WP(C).No.32397/2010-Y.

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Fresh orders shall be issued as early as possible,

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at any rate, within a period of three months from the date of

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receipt of a copy of this judgment.

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It is noticed that the petitioner had raised a further grievance regarding return of seized records. It is for the appropriate authority to consider the request, if any made in this regard, taking note of relevant provisions contained in the Statute.

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C.K.ABDUL REHIM, (Judge)

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Kvs/-

A.Arun v. the Intelligence Officer

Case brief

What is this about?

What did the court decide?

A.Arun v. the Intelligence Officer

Case brief

What is this about?

What did the court decide?

What the court decided

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