Allowed

T.Beena v. the Assistant Commissioner

Kerala HC10 Dec 2010WP(C)/35203/2010

Case brief

AI extract

What is this about?

In a writ petition, the High Court of Kerala quashed an assessment order finalized under the KVAT Act without providing a hearing or considering a request for an extension of the reply deadline, holding the procedure to be a violation of natural justice.

What did the court decide?

Petitioner allowed two weeks time to file objections. First respondent directed to finalize assessment afresh after considering objections and affording a reasonable opportunity for personal hearing.

T.Beena Vs the Assistant Commissioner — Writ and Judicial Review | 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 FRIDAY, THE 10TH DECEMBER 2010 / 19TH AGRAHAYANA 1932

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WP(C).No. 35203 of 2010(A)

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PETITIONER:

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T.BEENA, PROPRIETRESS, M/S.SEEMATTY, K.K.ROAD, KOTTAYAM.

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BY ADVS. DR.K.B.MUHAMED KUTTY, SENIOR ADVOCATE SRI.K.M.FIROZ

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RESPONDENTS:

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1. THE ASSISTANT COMMISSIONER (KVAT), COMMERCIAL TAXES, SPECIAL CIRCLE, KOTTAYAM 686001.

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2. THE COMMISSIONER OF COMMERCIAL TAXES, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM 695001.

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BY SENIOR GOVERNMENT PLEADER, SRI.C.K.GOVINDAN

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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C.K.ABDUL REHIM, J

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W.P(C) No.35203 of 2010-A

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Dated this the 10^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 completed under Section 25(1) of the Kerala Value Added Tax Act (KVAT Act), with respect to the year 2008-09. Contention of the petitioner is that the assessment was finalized in flagrant violation of the mandatory procedures contemplated under the relevant statute and also in violation of principals of natural justice. Hence the petitioner is seeking to quash the assessment through this writ petition, without resorting to the statutory remedy of appeal.

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According to the petitioner, the proposal notice for finalization of the assessment was served on her on 21.10.2010, calling for objection if any to be filed within 15 days from the receipt such of notice and also providing an opportunity of hearing within that time. It is stated that the

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W.P(C) No.35203 of 2010-A

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petitioner had submitted Ext.P2 request seeking extension of time for filing objections, on the ground that the Chartered Accountant who is dealing with the matter has gone to Mangalore in connection with the demise of his brother-in-law. In Ext.P2, the request was to grant 20 days time to file reply. According to the petitioner without heeding to such request, the assessment was completed as per Ext.P3, even before expiry of time stipulated in the proposal notice.

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Learned counsel for the petitioner draws my attention to the observations contained in Ext.P3 to the effect that the assessing authority had made it clear that he is not in a position to allow more time since he has to complete the assessment immediately as per the directions contained in the minutes of the conference of the Commissioner held on 28.9.2010.

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I am of the considered opinion that the reason mentioned in Ext.P3 for not granting time for filing objections, is totally unjustified. I further notice that the

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W.P(C) No.35203 of 2010-A 3

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assessment was completed even without affording an opportunity of personal hearing to the petitioner. As held by this Court as well as by the Hon’ble Supreme Court in various decisions, finalization of the assessment is a quasi judicial function and the procedure contemplated under the statute need be strictly adhered to. It is also well settled that while finalizing the assessment, the assessing authority should adhere to principles of natural justice. Going by contents of the order impugned, I am not in a position to hold that the assessing authority had complied with such requirements in its real sense. Therefore I am of the view that the impugned order of assessment is unsustainable in the eye of law.

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Accordingly, the writ petition is allowed and Ext.P3 is hereby quashed. The petitioner is allowed two weeks time from the date of receipt of a copy of this judgment for filing objections against Ext.P1 proposal notice. If the petitioner files objections within that time, the 1^st respondent shall finalise the assessment afresh after

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W.P(C) No.35203 of 2010-A

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considering such objections and affording a reasonable opportunity for personal hearing.

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Needless to say that, the petitioner shall be permitted to produce books of accounts or other documents in support of her contentions. The 1^st respondent is directed to finalise the assessment as early as possible, at any rate within a period of two months from the date of receipt of such objections. It is made clear that if there is any failure on the part of the petitioner in co-operating with the finalization of the assessment, the 1^st respondent will be at liberty to issue fresh orders on an ex-parte basis.

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Sd/C.K.ABDUL REHIM JUDGE

//True Copy//

P.A to Judge

W.P(C) No.35203 of 2010-A 5

T.Beena v. the Assistant Commissioner

Case brief

What is this about?

What did the court decide?

T.Beena v. the Assistant Commissioner

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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