Kerala High Court
Autocop India Pvt.Ltd vs Assistant Commissioner on 25 June, 2012
Author: Antony Dominic
Bench: Antony Dominic
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
WEDNESDAY, THE 20TH DAY OF FEBRUARY 2013/1ST PHALGUNA 1934
WP(C).No. 20346 of 2012 (P)
---------------------------------------
PETITIONER:
------------------
AUTOCOP INDIA PVT.LTD.,
C.C.NO.34/980-A, "ANJALI", ANJUMANA TEMPLE ROAD,
MAMANGALAM, COCHIN-682 024,
REPRESENTED BY ITS ACCOUNTS MANAGER SRI. PAUL ALEX.
BY ADVS.SRI.TOMSON T.EMMANUEL,
SRI.N.JAYAKUMAR.
RESPONDENT:
---------------------
ASSISTANT COMMISSIONER,
SPECIAL CIRCLE-I, COMMERCIAL TAXES,
SALES TAX COMPLEX,
COCHIN-682 015.
BY GOVERNMENT PLEADER SRI. T.K. SHAIJ RAJ.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 20-02-2013, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Prv.
W.P.(C). NO.20346/2012-P:
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1: TRUE COPY OF AUDIT REPORT IN FORM NO. 13 & 13 A SUBMITTED BY
THE PETITIONER FOR THE YEAR 2006-07, BEFORE THE RESPONDENT.
EXHIBIT P2: TRUE COPY OF STATEMENT OF `F' FORM DECLARATION TOWARDS THE
INTERSTATE STOCK TRANSFER OUTWARD, PRODUCED ALONG
WITH PROOF OF MOVEMENT OF GOODS THORUGH LORRY/COURIER
RECEIPTS FOR 2006-07, PRODUCED BY THE PETITIONER, BEFORE THE
RESPONDENT.
EXHIBIT P3: TRUE COPY OF ASSESSEMNT ORDER NO.32070218905/2006-07/CST
DATED 25.6.2012 COMPLETED BY THE RESPONDENT FOR THE
YEAR 2006-07 ON THE PETITIONER UNDER THE
CENTRAL SALES TAX ACT.
EXHIBIT P4: TRUE COPY OF ASSESSMENT ORDER NO.32070218905/2006-07
DATED 25.6.2012 COMPLETED BY THE RESPONDENT
FOR THE YEAR 2006-07 ON THEPETITIONER UNDER
THE KERALA VALUE ADDED TAX ACT.
EXHIBIT P5: TRUE COPY OF REQUEST FOR RECTIFICATION OF MISTAKE U/S. 66
FILED BY THE PETITIONER, BEFORE THE PETITIONER AGAINST EXT. P4
ASSESSMENT.
EXHIBIT P6: TRUE COPY OF JUDGMENT DATED 31.10.2011 OF HON'BLE HIGH COURT
OF KERALA IN W.P.C NO.38058 OF 2010(F) IN QUASHING AN ASSESSMENT
UNDER COMPOUNDING SCHEME PASSED WITHOUT A NOTICE.
EXHIBIT P7: TRUE COPY OF NOTICE DTD. 17/09/2010 ISSUED U/S. 25 OF THE KVAT
FOR THE YEAR 2006-07 BY THE PREDECESSOR IN THE OFFICE OF THE
RESPONDENT, WHERE IN IT IS NOT PROPOSED FOR A COMPOSITE
ASSESSMENT UNDER THE KVAT AND CST ACT.
EXHIBIT P8: TRUE COPY OF REPLY DTD. 04/10/2010 SUBMITTED BY THE PETITIONER,
BEFORE RESPONDENT, PURSUANT TO EXT.P.7 UNDER THE KVAT ACT,
WITH A PRAYER FOR PERSONAL HEARING.
EXHIBIT P9: TRUE COPY OF NOTICE DTD. 13/06/2012, U/S. 25 UNDER THE KVAT ACT
ISSUED TO THE PETITIONER BY THE RESPONDENT, DUE TO CHANGE OF
ASSESSING AUTHORITY AS PER LAW, FOR CONTINUING THE
PROCEEDINGS OF ASSESSMENT FOR 2006-07 UNDER THE KVAT ACT.
EXT.P.10: TRUE COPY OF LETTER DTD. 26/06/2012 SUBMITTED ALONG WITH
EXT.P.2. AND RELATED LORRY/COURIER RECEIPTS, PURSUANT TO
EXT.P.9 NOTICE OF RESPONDENT.
RESPONDENT'S EXHIBITS: NIL.
//TRUE COPY//
P.A. TO JUDGE
Prv.
ANTONY DOMINIC,J
--------------------------------
W.P.(C) No.20346 of 2012
-------------------------------------
Dated this the 20th day of February, 2013
JUDGMENT
Petitioner challenges Ext.P3, an assessment order under the CST Act for the period 2006-2007. The ground urged against Ext.P3 is that the assessment was completed without a pre-assessment notice.
2. However, in the counter affidavit filed by the respondent, the stand taken is that a composite notice under the KVAT and CST Acts was issued and that therefore, there is no substance in the objection raised by the petitioner. In view of the said claim, this Court passed order dated 22.01.2013, requiring the petitioner to produce the notices and their replies. Accordingly, the petitioner has produced Ext.P7, the pre-assessment notice relied on by the respondent, which show that this was a notice issued for assessment under Section 25 of the W.P.(c) No.20346 of 2012 : 2 : KVAT Act. Ext.P8 is the reply of the petitioner to that notice. Thereafter, there was a change of incumbent in the office and as a result, Ext.P9 hearing notice was also issued referring to Ext.P7 notice. To that also, the petitioner filed Ext.P10 reply.
3. Evidently therefore, the factual position that emerges is that the only notice that preceded Ext.P3 assessment order is Ext.P7 and that notice was one issued under the KVAT Act, which did not make reference to the provisions of the CST Act. This, therefore means that the assessment was completed by Ext.P3 without a pre- assessment notice as provided in the CST Act. In that view of the matter, the assessment cannot be sustained.
4. In view of the above, I direct that Ext.P3 will be treated as pre-assessment notice. Petitioner says that in addition to the replies already filed by them as per Exts.P8 and P10, there is no further reply to be filed. Therefore, I W.P.(c) No.20346 of 2012 : 3 : direct that the respondent will hear the petitioner and pass fresh orders in the matter, duly adverting to Exts.P8 and P10 and also the 'F' forms and other documents, which the petitioner has already produced. Such order shall be passed, at any rate, within six weeks of production of a copy of this judgment.
Petitioner will produce a copy of this judgment before the respondent for compliance.
Sd/-
ANTONY DOMINIC, JUDGE ln