N SALIM Vs. ASSISTANT COMMISSIONER

JUDGEMENT

(1.) CHALLENGE is against Exts.P4 and P5 assessments finalised with respect to the years 2007-2008 and 2008- 2009. Earlier, when pre-assessment notices were issued the petitioner had approached this court in W.P (c) No.24774/2010. That case was ultimately disposed of by a Division Bench of this court in WA No.1557/2010 through Ext.P3 judgment. In Ext.P3 this court observed that, it is settled legal position that collection of advance tax is only on provisional basis and the actual tax liability is to be determined in the course of assessment. It is also observed that if the accounts are believable then assessment has to be made on the basis of the accounts and on the other hand if it is found as not genuine, then gross profit has to be estimated. In Ext.P3 a direction was issued to the assessing authority to complete the assessment after giving opportunity to produce Books of Accounts and after issuing notice calling for objections and conducting personal hearing. Grievance of the petitioner is that despite the specific direction contained in Exts.P3 judgment, Exhibits P4 and P5 assessments were finalised without issuing any pre-assessment notice, again relying on Exts.P1 and P2 circulars issued with respect to collection of advance tax. Hence the petitioner is challenging the assessments as unsustainable in the eye of law.

(2.) HEARD; Special Government Pleader (Taxes) appearing on behalf of the respondent. The mandatory procedure contemplated under Section 25 of the Kerala Value Added Tax Act, 2003 insist on issuance of pre- assessment notice calling for objections and also for affording an opportunity of personal hearing. Evidently, inspite of specific directions contained in Ext,.P3 judgment, no pre-assessment notices were seen issued before finalizing the assessments. Hence I am of the view that Exts.P4 and P5 cannot withstand the test of sustainability under law.