IMPORTANT POINT
Valid service of pre-assessment notices and adherence to natural justice are essential for lawful tax assessments.

JUDGMENT :

Harisankar V. Menon, J.

The petitioner, who was an assessee under the provisions of the Kerala General Sales Tax Act, 1963 (hereinafter referred to as ‘the Act’) challenges Ext.P2 assessment order issued by the Fast Track Assessment Team constituted under the provisions of Section 17D of the Act.

2. The short facts necessary for the disposal of this writ petition are as follows:

3. The petitioner claims to be engaged in export of coir, rubber and rubberized coir products. The dispute is with reference to the assessment year 2004-05. Ext.P1 series are the monthly returns from April, 2004 to March, 2005.

4. The assessment of the petitioner has been completed under Section 17D of the Act. The 2nd respondent passed Ext.P2 assessment order dated 29.06.2010, pursuant to the pre- assessment notice dated 08.06.2010. The petitioner points out that the pre-assessment notice dated 08.06.2010 was not served upon him. The petitioner, therefore, challenges Ext.P2 assessment order on the ground of limitation since, according to him, the proceedings have been finalised beyond the period prescribed under Section 19(1) of the Act. The petitioner also points out that the assessment was completed violating the principles of natural justice since pre-assessment notice was not served upon him. It is also contended that the petitioner being an exporter, had no liability under the provisions of the Act.

5. Counter affidavits have been filed by the 2nd and 3rd respondents, pointing out that the proceedings were completed, since the period for finalisation of assessment was not over. It is also pointed out that the pre-assessment notice as well as the assessment order were served by affixture. It is thereafter pointed out that the properties of the petitioner were proceeded against for recovery and by exercising the power under Section 51 of the Revenue Recovery Act, the property owned by the petitioner is taken as bought-in-land.

6. Subsequent to the filing of this writ petition, the counsel relinquished his engagement. Notices issued by this Court in the address of the petitioner has also been returned.

7. In such circumstances, this Court requested Sri.Kuryan Thomas, a counsel of this Court to assist the court in disposing of this writ petition.

8. Heard Sri.Kuryan Thomas, the learned Amicus Curiae as well as Sri.Sayed M.Thangal, the learned Government Pleader appearing on behalf of the respondents.

9. Sri. Kuryan Thomas, points out that the assessment is illegal and liable to be set aside for the following reasons:

(i) The pre-assessment notice dated 08.06.2010 was served by affixture. The reason for such service by affixture as seen from the assessment order, is not satisfactory.

(ii) It is also pointed out that even the first notice requiring production of books of accounts, which according to the assessment order had been returned with the endorsement “addressee left”, is not proper service under the Act.

(iii) The notice dated 08.06.2010 issued by the Fast Track Team, available at page No.217 of the assessment files, is seen signed only by the Team Head and two members, when the Team was consisting of altogether four members including the Head, and under the statute all the members have to sign the notice.

(iv) It is also pointed out that the petitioner, being an exporter, had no liability under the provisions of Kerala General Sales Tax Act, 1963 or the CST Act, 1956. It is further pointed out that a perusal of returns produced as Ext.P1 series do not disclose any taxable sale.

10. Per contra, Sri.Sayed M.Thangal, the learned Government Pleader points out the following:

(i) That the pre-assessment notice dated 08.06.2010 had been served by affixture only on account of the admitted fact that the petitioner was not available at the business premises. Therefore, the Government Pleader contends that the service of notice was properly effected.

(ii) It is also pointed out that signature of all the members of the Team are required only as regards the fin