Thomas T. Lukose Proprietor, Tom Industries, Rajagirivalley P.O. Kakkanad, Cochin-682039 vs Fast Track Team Commercial Tax Department, 1st Circle, Kalamassery Cochin-682022, Commissioner of Commercial Taxes Public Office Building, Musium P.O. Thiruvananthapuram-695033, The Inspecting Assistant Commissioner Commercial Taxes, Civil Station, Kakkanad Cochin-682030 and State of Kerala

Manjula Chellur, Ag. C.J.

Heard learned counsel for the appellant as well as learned Government Pleader. The matter in dispute is with regard to reopening of the assessment and passing revised assessment order at Exhibit P9 by the first respondent. According to the appellant, before proceeding with the reassessment order, he was afforded an opportunity by show cause notice at Exhibit P4, wherein certain escape turnover for the assessment year 2004-2005 was brought to the notice of the appellant. His averments in the Writ Petition further disclose that he was allowed to file a detailed reply and argue his case before the assessing authority. After giving fair opportunity of being heard, Exhibit P9 came to be passed.

The main contention of the appellant-writ petitioner was, there is no provision for revising assessment u/s 17D (2)(d) of KGST Act and further contends, his turnover never exceeded Rs. 50 lakhs, the limit prescribed for getting exemption. On the other hand, the revised assessment order at Exhibit P9 indicates, the authority concerned came across the escape turnover and the appellant was put on notice of the same. Thereafter, the revised order came to be passed. It is not in dispute that a statutory appeal is provided against the assessment order of the assessing authority. The fact in dispute is with regard to turnover, which escaped from the assessment as pointed out by the assessing authority in its show cause notice at Exhibit P4 and revised assessment order at Exhibit P9. By records, the appellant is entitled to prove innocence and explain including the interpretation of the provision of reopening the assessment before the statutory appellate authority. Just because the appeal has to be filed after statutory deposit of tax, it does not give a right to challenge the same in proceedings under Article 226 of the Constitution of India.

In that view of the matter, having regard to the fact that all the issues could be dealt with by the appellate authority and the statute provides for a statutory appeal, we are of the opinion, all the contentions could be raised before the appellate authority. Hence, there is no need to interfere with the judgment of the learned Single Judge. The appellant is granted two weeks time from today to approach the statutory appellate authority. The revenue recovery proceedings initiated against him shall be kept in abeyance for 15 days from today.