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2012 Supreme(Online)(KER) 4190
HIGH COURT OF KERALA
P.R.RAMACHANDRA MENON, J
M NARAYANAN – Appellant
Versus
ASSISTANT COMMISSIONER WORKS CONTRACT – Respondent
WRIT PETITION (CIVIL) 14808/2012
A pending appeal against a penalty order does not negate the validity of a subsequent assessment order; the correct legal process must be followed subsequently.
Headnote:
Tax - Assessment - KVAT Act - 25(1) - The court disallowed interference with the assessment order, citing the lack of finalized appeal proceedings and underscoring the petitioner's recourse to further legal remedies.
Fact of the Case:
The petitioner contested an assessment order for 2008-2009 on grounds of reliance on unfinalized penalty proceedings. The delay in finalizing an appeal as directed by the court was a significant point of contention.
Finding of the Court:
The court criticized the delay from the second respondent in processing the appeal but ultimately ruled that the assessment could not be challenged until the formal appeal process was exhausted. The judgment reaffirmed the right of the petitioner to seek further legal recourse.
Issues: Whether the assessment order should be set aside due to the pending appeal regarding the imposition of penalty.
Ratio Decidendi: The court held that without a finalized appeal on the penalty, the assessment order must stand, emphasizing procedural completeness in tax matters.
Final Decision: Writ petition dismissed without prejudice, allowing the petitioner to seek further remedies.
JUDGMENT
The petitioner has approached this Court challenging Ext.P9 order of assessment for the year 2008-2009.
2. The main grievance of the petitioner is that the said assessment order has been passed merely based on the figures as to the alleged suppression, forming the subject matter of Ext.P1 order imposing penalty, which in fact is pending consideration in appeal. It is also contended that, in spite of the specific direction given by this Court as per Ext.P3 judgment, Ext.P2 appeal preferred against Ext.P1 has not been finalized so far and as such, Ext.P6 reply submitted in response to Ext.P5 notice under Section 25(1) of the KVAT Act has not been properly evaluated while passing Ext.P9 order, which in turn is under challenge in this writ petition.
3. When the matter came up for consideration before this Court on 02.07.2012, the second respondent was required to file an affidavit as to the non finalization of the appeal against the order imposing penalty, in spite of the clear direction given vide Ext.P3 judgment, to have it finalized within two months. An affidavit dated 10.07.2012 has been filed on behalf of the second respondent pointing out that, there was no co-operation from the part of the petitioner who was getting the matter repeatedly adjourned and that, the petitioner had not produced the relevant documents in support of the contentions. Finally, the matter was heard on 15.06.2012 and Ext.P2 appeal was dismissed as per order dated 18.06.2012, a copy of which has been produced as Annexure R2(a). The learned counsel for the petitioner submits that there is absolutely no merit or bonafides in the submissions contained in the affidavit and that there was no default on the part of the petitioner in any manner. It is seen that, the second respondent has never approach this Court seeking for extention of time, if there was any impediment in finalizing the proceedings as directed in Ext.P3 judgment.
4. In spite of the direction to have the matter finalized within two months, it is nearly 1 ½ years after the verdict, that the present order has been passed on 18.06.2012 dismissing Ext.P2 appeal. This Court is not at all happy with the explanation offered from the part of second respondent trying to justify the delay; which cannot but be deprecated in strongest possible words. However, this Court leaves the matter there, considering the submission made by the learned Government Pleader. In view of the fact that Ext.P2 appeal has already been finalized by passing Ext.R2(a) order, it is for the petitioner to have it challenged further, if aggrieved and if so advised.
This being the position, there cannot be interference with regard to Ext.P9 as well, and it is open for the petitioner to challenge Ext.P9 in accordance with relevant provisions of law. Interference is declined and writ petition is dismissed accordingly, without prejudice to the rights and liberties of the petitioner to pursue other appropriate remedy.
P.R. RAMACHANDRA MENON, JUDGE.
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