9911796707
TMI Blog1993 (1) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... exhibit P-6, an order of assessment passed by the first respondent for the year 1990-91, dated July 16, 1992. Exhibit P-6 was challenged as illegal, unfair and violative of the principles of natural justice, amongst others. The learned single judge found that in exhibit P-6, the objection filed by the appellant has been elaborately considered and the appellant has got a remedy by way of appeal against exhibit P-6. The learned single judge declined jurisdiction. The petitioner in the original petition has come up in writ appeal. We heard counsel for the appellant as also counsel for the respondents, senior Government Pleader, Mr. V. C. James. When the matter came up before us on January 6, 1993, we requested the Senior Government Plea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Assessing Officer only on July 16, 1992. On the very same day, the order of assessment was also passed. Exhibit P-6 does not show that the assessee was heard in person before the assessment order was passed. The first respondent, who was present in the court, conceded that the assessee was not heard before exhibit P-6 order of assessment was passed. But, it was stated that even in exhibit P-5 assessment notice, it was stated that the assessee will be heard when the objections were filed. We doubt very much whether such "lip service" regarding the requirement of hearing will be sufficient compliance in law. Even so, can it be so in all cases, without regard to the dimensions of the questions involved? In this case, the objections the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eny that there has been no administrative fair play. " See also S. N. Govinda Prabhu and Bros' case [1985] 59 STC 33 (Ker) and Indian Transformers Ltd.'s case [1983] KLT 861 at page 866. In this case, intricate or complicated questions are involved in the matter as is seen from exhibit P-5. It required a proper evaluation and appraisal and oral hearing before passing the assessment order (exhibit P-6). It was not done. The Supreme Court in State of Kerala v. K. T. Shaduli Yusuff [1977] 39 STC 478 at page 483, adverting to the relevant provisions of the Kerala General Sales Tax Act, states thus : ". . . . where a return has been submitted by the assessee, the Sales Tax Officer would first have to satisfy himself that the return is incorr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in violation of the principles of natural justice is void. The learned Government Pleader was not able to satisfy us that exhibit P-6 was passed in conformity with law. We, therefore, quash exhibit P-6. It is true that the assessee has an alternative remedy under the statute, to file an appeal against exhibit P-6. Normally, availability of such an alternative remedy will dissuade this court from exercising the jurisdiction under article 226 of the Constitution of India. Indeed, the learned single judge has declined to exercise the jurisdiction on that ground. In appeal, normally, the exercise of such a discretion will not be interfered with. But, in this case, keeping in view exhibits P-3 and P-5, we are satisfied that exhibit P-6 was p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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