A.M.ABDUL HAMEED V. AGRICULTURAL INCOME TAX AND COMMERCIAL

WP(C)/33038/2010

AI Insights

The case involves A.M. Abdul Hameed, a registered dealer in hill produces, who faced penalties under the Kerala General Sales Tax Act (KGST Act) for the years 1999-2000 to 2002-2003. Initially, the petitioner opted for the 'Amnesty Scheme' which was later cancelled by the first respondent, leading to legal challenges. The High Court of Kerala intervened to ensure that the assessment was completed within a stipulated time and allowed the petitioner to reapply for the amnesty benefits post-assessment. However, the petitioner received the assessment notices only 48 hours before the deadline, prompting a request for more time and documents, which the court granted, emphasizing the need for adherence to natural justice.

• Counselvise Citation: [2010] 140 COUNSELVISE.COM (IT) 761409 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 01-11-2010
• Assessment Year: misc
• Laws Referred To: Kerala General Sales Tax Act (KGST Act)
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: C K GOVINDAN
• Assessee Lawyers: HARISANKAR MENON; MEERA MENON; MAHESH MENON
• Keywords: Amnesty Scheme; Assessment; Natural Justice; Penalty
• Section: 45-A; 19(c)

Judgement Text

" 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: VK C.K. ABDUL REHIM, J ------------------------------ WP(C) NO. 33038 OF 2010 ------------------------------------- Dated this the 1st day of November, 2010 JUDGMENT Petitioner is a registered dealer engaged in trading of hill produces. With respect to the years 1999-'00 to 2002-'03 penalty was imposed on the petitioner under Section 45 A of the Kerala General Sales Tax Act (KGST Act). The petitioner had taken up the matter in appeals before the Deputy Commissioner. But during pendency of the appeals, the petitioner had opted for payment of the amount under the 'Amnesty Scheme' and the first respondent had initially permitted such payment. Subsequently, through an order dated 29.06.2010, the amnesty benefit granted to the petitioner was cancelled, taking a view that the amnesty benefit can be allowed only if assessments are also completed and only if the petitioner is ready to settle both the tax amount as well as penalty. 2 WP(C) No. 33038/2010 2. Cancellation of the amnesty order was subject matter of challenge before this Court, which culminated in Ext.P1 judgment. This Court recorded submission of the Government Pleader that the assessment will be completed within the shortest time possible. Taking note of the fact that the Amnesty Scheme was extended till 30.09.2010, this Court directed the first respondent to finalise the assessment within a period of one month. Liberty was given to the petitioner to prefer application for allowing benefits under the Amnesty Scheme, after settlement of the assessment, with respect to both the liability. Subsequently, the first respondent approached this Court seeking extension of the time stipulated in Ext.P1 judgment. Through Ext.P2 order this Court extended the time limit till 01.11.2010. Exts.P3 and P4 series are the proposal notices issued subsequent to Exts.P1 and P2, under the provisions of the KGST and CST Act respectively. In the said notices, the petitioner was requested to submit objections against 3 WP(C) No. 33038/2010 proposal on or before 29.10.2010 at 11 a.m. The petitioner was also afforded with an opportunity of hearing on that date. 3. It is stated that Exts.P3 and P4 series notices were served on the petitioner only on the evening of 27.10.2010. That means time stipulated for filing objections and for personal hearing is only about 48 hours from the receipt of such notices. On receipt of the notices, the petitioner submitted Ext.P5 request narrating the above facts and seeking further time for filing objections. The petitioner also requested for supply of copies of four documents, upon which reliance was placed by the first respondent for finalising the assessment under Section 19 C. Apprehension of the petitioner is that without taking note of the request the first respondent may issue orders of assessment, since the time stipulated in Ext.P2 is expiring on 01.11.2010. 4. When the matter came up for consideration on 4 WP(C) No. 33038/2010 29.10.2010 the Government Pleader was directed to get instruction and to inform the first respondent not to finalise the assessment. It is conceded by learned Government Pleader that Exts.P3 and P4 series notices were served on the petitioner only on 27.10.2010. Therefore it is evident that sufficient opportunity for filing effective objections was not afforded to the petitioner. The petitioner had also made specific request for supplying copies of four documents upon which reliance was placed. Principles of natural justice demands issuance of copies of such documents for facilitating the petitioner to submit effective objections. 5. Under the above mentioned circumstances, I am of the view that the first respondent need be directed to provide reasonable opportunity to the petitioner before finalising the assessment. 6. In the result, the Writ Petition is disposed of directing the first respondent to consider Ext.P5 request and to take a decision thereof regarding supplying copies of 5 WP(C) No. 33038/2010 the documents as requested. The petitioner shall be afforded with sufficient opportunity for filing objections, after proposal of Ext.P5. Needless to say that an effective opportunity of hearing also should be provided after filing of the objections. 7. Fresh orders of assessment shall be issued after complying with all the procedures prescribed under relevant provisions and after due compliance of principles of natural justice, taking note of the directions as above, at the earliest possible. C.K. ABDUL REHIM JUDGE dnc "