P. H. Mohammed Kunju and Brothers vs Commissioner of Commercial Taxes, Thiruvananthapuram and OTHERS

Antony Dominic J.

For the assessment year 2008-09 assessment of the petitioner under the Kerala General Sales Tax Act was completed in terms of the provisions contained u/s 17D of the Kerala General Sales Tax Act and exhibit PI is the order of assessment. Subsequently exhibit P2 notice to reopen the assessment was issued by the second respondent. In this notice it was stated that the Commissioner of Commercial Taxes vide order No. R1-34410/10/CT dated November 10, 2010 has accorded sanction to reopen the above assessment and therefore it was proposed to reopen the same. Accordingly the assessment was finalized. The assessment order was challenged by the petitioner in Writ Petition (C). No. 11279 of 2011 (P.H. Mohammed Kunju and Brothers v. Assistant Commissioner). In that writ petition his only complaint was that the assessment was completed without affording him adequate opportunity to file his objections or giving him an opportunity of hearing. This court accepted the contentions of the petitioner and the writ petition was disposed of by exhibit P3 judgment. In that judgment it was held as follows :

Having heard both sides, I am of opinion that the petitioner can be given another opportunity to file his objections and prove his contentions. For this purpose exhibit P6 is quashed. The petitioner shall file his objections to exhibit P4 notice within two weeks from today. Thereafter the first respondent shall afford an opportunity of being heard to the petitioner and pass fresh assessment orders.

Accordingly the petitioner filed exhibit P4 objection. It is stated that thereafter on the basis of the application filed by him under the Right to Information Act, the petitioner obtained the order dated November 10, 2010, issued by the Commissioner of Commercial Taxes, based on which exhibit P2 notice was issued. Subsequently this writ petition has been filed producing the stay order of the Commissioner as exhibit P5 and seeking to quash the same. Contention raised by the counsel for the petitioner is that this order has been issued without putting the petitioner on notice or affording an opportunity of hearing. In support of this contention counsel also place reliance on the apex court in the judgment in [2007] 2 SCC 18-2. However, it was also contended that the assessment having been conducted by the team constituted u/s 17D, the Commissioner could not have authorized the second respondent, the assessing authority, to reopen the assessment. In support of this contention counsel relied on the judgment of this court in Writ Petition (Q. No. 20625 of 2010(C) (Calcutta Tarpaulin Co. v. Commercial Tax Officer). I have considered the submission made and also heard the Government Pleader appearing for the respondent.

First of all, it was on the basis of exhibit P5, now challenged by the petitioner that exhibit P2 notice to reopen the assessment was issued to the petitioner. In that notice, exhibit P5 order was specifically referred to. When assessment was reopened on the basis of exhibit P2, although petitioner challenged the order of assessment on the ground that it was when the assessment was completed, no notice was issued and an opportunity of hearing was not granted, no challenge whatsoever was raised against exhibit P5 order of the Commissioner. It was considering that grievance this court in exhibit P3 judgment quashed the assessment and directing for a fresh assessment orders to be passed after allowing the petitioner to file his objections and affording an opportunity of hearing. Therefore, if at all the petitioner has any grievance against exhibit P5 that contention was available to the petitioner when he filed Writ Petition (C). No. 11279 of 2011(H) (P. H. Mohammed Kunju and Brothers v. Assistant Commissioner) and he having not urged the same, it is not open to the petitioner to restart that contention at this distance of time. Secondly when a person complains that principles of natural justice has been violated it is also incumbent on the part of the said person to show that by such violation prejudice has been caused. Section 17D(2)(d) of the KGST Act, 1963, permits reopening of assessment completed provided fresh materials pertaining to tax have been received. Section also contemplates that such reopening shall be only with the prior permission of the Commissioner. In exhibit P5 the reason stated for by the court for granting permission is that File No. 08-1278/03-04 dated June 5, 2010 imposing penalty of Rs. 35,932 has not been utilized for the assessment of the petitioner. In the pleadings in the writ petition the fact that the penalty was imposed and that penalty was not taking into account at the time when assessment was completed are not disputed. If that be so, this is a case where fresh materials were received justifying reopening as contemplated u/s 17D(2)(d) of the KGST Act. In such situation the petitioner cannot complain that any prejudice has been caused to him also. However, from exhibit P5,1 notice that sanction has been accorded to the assessing authority, second respondent to complete the assessment. Admittedly this is a case where assessment was completed in terms of section 17D. Therefore, re-opening also should be conducted in the manner as in section 17D. To that extent I find substance in the contention raised by the petitioner. Therefore, the challenge against exhibit P5 is rejected. However, I direct that re-opening of the assessment consequent thereto shall be completed in the manner as provided u/s 17D itself. Writ petition is disposed of as above.