The petitioner is a Wakf. Petitioner submitted returns in terms of Section 72(1) of the Walf Act, 1995 showing the annual net income. Ext.P10 is the assessment order for the year 2012-'13. According to the petitioner, this is not in compliance with Section 72. According to the petitioner, if there is any disagreement on return, the Chief Executive Officer must convey the disagreement to the petitioner by way of show cause notice and thereafter after giving opportunity to the petitioner to raise objection on the show cause notice, the Chief Executive Officer has to finalise the proceedings. It is further submitted that without following the procedure as contemplated under Section 72(6) the demand cannot be raised.
2. The petitioner relies on Ext.P9 returns. Section 72(6) of the Wakf Act, 1995 reads as follows:
“Where, after the commencement of this Act, the mutawalli of a wakf fails to submit a return of the net annual income of the wakf within the time specified therefor or submits a return which, in the opinion of the Chief Executive Officer is incorrect or false in any material particular, or which does not comply with the provisions of this Act or any rule or order made thereunder, the Chief Executive Officer may assess the net annual income of the wakf to the best of his judgment or revise the net annual income as shown in the return submitted by the mutawalli and the net annual income as so assessed or revised shall be deemed to be the net annual income of the wakf for the purposes of this section:
Provided that no assessment of the net annual income or revision of return submitted by mutawalli shall be made except after giving a notice to the mutawalli calling upon him to show cause, within the time specified in the notice, as to why such assessment or revision of the return shall not be made and every such assessment or revision shall be made after considering the reply if any, given by the mutawalli.”
The proviso abundantly makes clear, no assessment of net income or revision of return submitted by the Mutawalli shall be made except after giving a notice to the Mutawalli calling upon to the show cause notice within the time specified in the notice. Therefore, it is clear that Ext.P10 demand notice is issued in violation of the provisions contained in Sec.72(6). The learned Standing Counsel pointed out that this order is appealable, I am of the view, the petitioner is not questioning the merit of the decision. The petitioner is only questioning the decision making process. Therefore, having followed the erroneous procedure in making a decision, necessarily that can be challenged by invoking the remedy under Article 226 of the Constitution. The judicial review is directed against the decision making process not to the decision itself. In view of the above the challenge is sustainable. The Chief Executive Officer has not followed the procedure contemplated under the proviso to Sec.72(6) while issuing Ext.P10. Therefore, Ext.P10 is set aside. The Chief Executive Officer shall state the disagreement with the return submitted by the petitioner in Ext.P9 and to issue a show cause notice as contemplated under Sec.72(6) and thereafter after inviting objection, shall finalise the proceedings within the time specified.
The writ petition is disposed of as above.
Sd/-
A.MUHAMED MUSTAQUE, (Judge)
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