V.J.SEBASTIAN v. THE COMMERCIAL TAX OFFICER

WA 322/20071K.S. RADHAKRISHNAN, Ag. C. J. & M.N. KRISHNAN, J.------------------------------------------------------------------------------------Writ Appeal No 322 of 2007-----------------------------------------------------------------------------------Dated: 26th February, 2007.JUDGMENT Radhakrishnan, Ag.C.J.Writ petition was preferred by the appellant seeking a writ ofcertiorari to quash Exts. P1 and P2 assessment orders and for a direction to the second respondent to issue necessary orders to maintain visitors book in every offices functioning under the Department and also for other consequential reliefs. Assessee's main grievance is that before passingExts. P1 and P2 assessment orders no effective opportunity was given to him or his representative to place all the records before the assessing authority. Ext. P1 assessment order relates to the year 2003-2004 and Ext.P2 assessment order relates to the year 2004-2005. Assessee receivedExt.P3 notice in form No. 50 dated 1.12.2006 by which he was directed to produce the books of accounts for the years 2003-2004 and 2004-2005 on7.12.2006. On receipt of the same assessee filed Ext. P4 letter requesting the officer to adjourn the matter to a convenient date in the first week of WA 322/20072January 2007. Assessee submits that without granting time the first respondent issued notice under Section 17 (3) of the Kerala General SalesTax Act, 1963 proposing to complete the assessment on best judgment. Identical notice was issued in respect of the year 2004-2005 whereinassessee sought one week's time. Assessee later received another notice dated 23.12.2006 granting time upto 26.12.2006.

Counsel for the assessee submits that on the said date assesseedeputed Smt Radhika, Salestax Practitioner to appear before the first respondent on the morning of 26.12.2006, Sales Tax Practitioner appeared before the first respondent on the morning of 26.12.2006 with the books of accounts for the years 2003-04 and 2004-05. An affidavit was filed before this court by the Sales Tax Practitioner stating that she had appeared before the officer at 11 A.M on 26.12.2006 with all books of accounts pertaining to the above mentioned assessment years. She was however informed that the books of accounts would be verified later since the officer was busy with various other work and was directed to produce the books of accounts on another day which would be intimated within three or four days.

When the matter came up for hearing we directed learnedGovernment Pleader to get instructions in the matter. On instructions it was submitted by the learned Government Pleader that the Sales Tax WA 322/20073Practitioner did appear on behalf of the assessee on 26.12.2006. Furtherit was stated that the assessee was not co-operating for the finalisation of the assessment years in question.

The question that has come up for consideration in this case is whether the Sales Tax Practitioner had appeared before the first respondent with the relevant books of accounts on 26.12.2006. Affidavit filed by the Sales Tax Practitioner would indicate that she appeared before the first respondent at 11 A.M on 26.12.2006, but the stand of the first respondent is otherwise. We are not in a position to find out whether in fact the SalesTax Practitioner had appeared on 26.12.2006 before the first respondent. No records are kept in the office of the first respondent recording eachday's proceedings. If the first respondent had maintained a visitors' book or other register in the office it would have been possible to ascertain whether in fact the Sales Tax Practitioner had appeared before the first respondent on 26.12.2006.

We are of the view, since the assessees or their representatives are required to be present before the assessing authority while finalising the assessment it is highly necessary that all the Sales Tax Offices should keep Register recording the proceedings including a visitors' book. Whenthe assessee or his representative appears on the date notified the WA 322/20074proceedings could be recorded and the signature could be obtained. If thereis no appearance for the assessee the assessing authority can also note it in the register of non appearance. In the absence of any register, we are inclined to accept the affidavit of the Sales Tax Practitioner that she was present on 26.12.2006.