K.P.HAYARUNNISA Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner was served with an order styled as an assessment notice dated 01.11.2013, issued under Section 5 of the Building and Other Construction Workers Welfare Cess Act , 1996 (for short 'the Act'). Apart from challenging Ext.P1 notice, by an amendment, petitioner has also incorporated an additional relief, challenging the validity of Rule 14 of the Building and Other Construction Workers Welfare Cess Rules, 1998 (for short 'the Rules')as unconstitutional and contrary to the spirit of Section 5 and 11 of the Act.

(2.) Petitioner is alleged to have completed construction of a building in Kanjirapally Taluk, consequent to which, liability under the Act is alleged to have arisen. Admittedly, petitioner has not filed a return as contemplated under Section 4 of the Act. According to the petitioner, if there is a failure to file a return under Section 4 of the Act, the remedy available before the Assessing Officer is to issue a notice as contemplated under Section 4(2) and thereafter. Since no such notice has been issued to the petitioner, Ext.P1 assessment order is, according to the petitioner, bad in law.

(3.) A counter affidavit has been filed by the third respondent stating that a notice was issued for hearing and the petitioner consequent to the notice, appeared and it is thereafter, when the petitioner failed to produce any relevant document within the time allowed, that the spot inspection was carried out on 19.10.2013 consequent to which the impugned order was passed. It was pointed out that the assessment was carried out after inspection and after proper compliance of all procedures. It is further stated that the remedy of a person aggrieved by an order issued under Section 5 of the Act is to prefer an appeal as per the provisions of Section 11 of the Act, read with Rule 4, and that the attempt of the petitioner through this writ petition is to overcome the requirement of depositing the amount assessed for preferring an appeal.