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2009 Supreme(Online)(KER) 10260
HIGH COURT OF KERALA
P.R.RAMACHANDRA MENON, J
PEST CONTROL (INDIA) PVT. LTD. – Appellant
Versus
THE COMMISSIONER OF COMMERCEIAL TAXES – Respondent
WP(C)/22392/2009
SRI.K.SRIKUMAR, SRI. K.J.CHERRY BABU, SRI.P.R.AJITHKUMAR, SRI.K.MANOJ CHANDRAN
A tax assessment cannot simultaneously invoke multiple provisions when a clear legislative intent exists for individual application.
Headnote:
Assessment - Writ Petition - Tax Act Section [17(D), 17(3)] - The court found that the simultaneous invocation of Sections 17(D) and 17(3) in the assessment orders was not sustainable, requiring a reevaluation of the correct provision to be applied while providing the petitioner an opportunity for a hearing.
Fact of the Case:
The petitioner challenges assessment orders under both Section 17(D) and Section 17(3), arguing that it should only be assessed under Section 17(3) and claims procedural defects in the orders.
Issues: Could the assessing authority simultaneously invoke Sections 17(D) and 17(3) for tax assessment?
Ratio Decidendi: The court held that any assessment must rely on either Section 17(D) or 17(3) but not both simultaneously, necessitating a fresh assessment following proper procedures.
Final Decision: The impugned orders are set aside and the matter is remitted for reconsideration.
J U D G M E N T
The petitioner is aggrieved of Ext.P10 and P11 assessment orders passed by the authorities, simultaneously invoking the provisions under Section 17 (D) as well as 17(3). The case put forth by the petitioner in the Writ Petition is that, the assessment could only be under Section 17 (3) and though the actual facts and figures including the relevant provisions of law have very well been projected in Ext.P13 and P14 appeals, because of the assessment stated as under Section 17 (D), requisite amount contemplated under Section 17 (D) (5) is being insisted to be paid and the proceedings have been noted as defective.
2. Heard the Special Government Pleader (Taxes) as well, who concedes the factual position as revealed from the impugned orders that the proceedings have been finalized by the authorities, simultaneously under Section 17 (D) and under Section 17 (3) pointing out that the authority could not have simultaneously invoked both the provisions. However, with regard to the case put forth from the part of the petitioner that the assessment had to be completed under Section 17 (3), it is stated as not correct or sustainable, contending that, it is for the assessing authority to consider and decide whether it should be under Section 17 (D) or under Section 17 (3).
3. Considering the facts and circumstances, the impugned orders Ext.P10 and P11 passed by the 3rd respondent simultaneously under Section 17 (D) and under Section 17 (3) are hereby held as not correct or sustainable and are set aside. The matter is remitted to the 3rd respondent, to consider the same afresh, as to whether the matter should be finalized invoking the provision under Section 17 (D) or under Section 17 (3). The proceedings shall be finalized after giving an opportunity of hearing to the petitioner, in accordance with law, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. 4. Since the impugned orders are set aside, it is also made clear that, all further proceedings of recovery of the amount allegedly due from the petitioner, shall be kept in abeyance, till such final orders are passed afresh, as aforesaid.
The Writ Petition is disposed of accordingly.
P.R.RAMACHANDRA MENON JUDGE dnc
