Allowed

Jalaja Chandrasekharan v. the Commercial Tax Officer

Kerala HC16 Jun 2016WP(C)/6095/2013

Case brief

AI extract

What is this about?

The petitioner challenged an assessment order under Section 19 of the Kerala General Sales Tax Act, arguing it was barred by limitation. The Court observed the assessment was reopened improperly despite an un-amended Section 19 and a time limit. Holding the contention erroneous, the Court allowed the writ petition and quashed the assessment order.

What did the court decide?

The writ petition was allowed and the assessment order (Ext.P1) was quashed.

Jalaja Chandrasekharan Vs the Commercial Tax Officer — GST and Indirect Tax | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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THURSDAY, THE 16TH DAY OF JUNE 2016/26TH JYAISHTA, 1938

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WP(C).No. 6095 of 2013 (J)

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PETITIONER(S):

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JALAJA CHANDRASEKHARAN, W/O.T.K. CHANDRASEKHARAN, THARAYIL COTTAGE, LOAKAMALLESWARAM, KODUNGALLUR, THRISSUR DISTRICT, PIN -680 664.

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BY ADVS.SRI.MOHAMMED RAFIQ, SRI.M.G.SHAJI.

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RESPONDENT(S):

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1. THE COMMERCIAL TAX OFFICER, DEPARTMENT OF COMMERCIAL TAXES, KODUNGALLUR, THRISSUR DISTRICT, PIN- 680 664.

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2. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, COMMERCIAL TAXES DEPARTMENT, TRIVANDRUM -695 001.

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BY SR. GOVT. PLEADER SRI.SUDHEESH KUMAR.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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WP(C).No. 6095 of 2013 (J)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXT.P1 COPY OF THE ASSESSMENT ORDER NO.25171064/99-2000 DATED 17/01/2013 PASSED BY THE FIRST RESPONDENT UNDER SECTION 19 OF THE KERALA GENERAL SALES TAX ACT, 1963.

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EXT.P2 COPY OF THE NOTICE DEMAND DATED 21/01/2013 IN FORM NO.13 ISSUED BY THE FIRST RESPONDENT UNDER THE KERALA GENERAL SALES TAX RULES, 1963.

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RESPONDENT'S EXHIBITS:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

A.M. SHAFFIQUE, J.

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============= W.P. (C) No. 6095 of 2013

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===================

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Dated this, the 16^th day of June, 2016

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J U D G M E N T

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Petitioner challenges Ext.P1 assessment order passed by the 1^st respondent under Section 19 of the Kerala General Sales Tax Act, 1963 (hereinafter referred to as the KGST Act). The assessment relates to the period 1999-2000. Assessment under Section 17 of the KGST Act relating to the aforesaid period was completed on 2/5/2003. Thereafter, assessment was reopened for assessing escaped turnover invoking Section 19 of the Act by issuing a notice dated 17/1/2012. Though the petitioner objected to the aforesaid reopening of assessment on the ground that it is barred by limitation, in Ext.P1 assessment order, it is stated that the authority is empowered to complete pending assessment or reassessment before 31^st March, 2013 which was incorporated by way of an amendment of the Kerala Finance Act, 2012. Learned counsel for the petitioner relying upon amendment made to the Kerala Finance Act, 2012 submits that Section 19 has not been

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W.P(C) No.6095/13

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amended by the said amendment. In fact, certain amendments had been given effect to in the KGST Act and Section 17 has been amended by which a proviso has been incorporated permitting completion of the assessments by 31^st March, 2011. No amendment had been effected to Section 19.

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2. Section 19 of the KGST Act reads as under;

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“ 19. Assessment of escaped turnover:- (1) Where for any reason the whole or any part of the turnover of business of a dealer has escaped assessment to tax in any year or has been under assessed or has been assessed at a rate lower than the rate at which it is assessable or any deduction has been wrongly made there from, the assessing authority may, at any time within five years from the expiry of the year to which the tax relates, proceed to determine to the best of its judgment the turnover which has escaped assessment to tax or has been under assessed or has been assessed at a rate lower than the rate at which it is assessable or the deduction that has been wrongly made and assess the tax payable on such turnover after issuing a notice on the dealer and after making such enquiry as it may consider necessary:

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Provided that before making an assessment under this sub-section the dealer shall be given a reasonable opportunity of being heard.

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W.P(C) No.6095/13

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Provided further that the time limit mentioned in this sub-section shall not apply where the turnover which escaped assessment relates to ay business done by such dealer as benamidar or through a benami or where it relates to dealer, who being liable to get himself registered under this Act and the rules made there under has failed to do so.

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(2) In making an assessment under sub-section (1), the assessing authority may, if it is satisfied that the escape from assessment is due to willful nondisclosure of assessable turnover by the dealer, direct the dealer to pay, in addition to the tax assessed under sub-section (1) a penalty as provided in section 45A .

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Provided that no such penalty shall be imposed unless the dealer affected has had a reasonable opportunity of showing cause against such imposition.

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Explanation: Notwithstanding anything contained in the Indian Evidence Act, 1872 , the burden of proving that the escape from assessment was not due to willful non-disclosure of assessable turnover by the dealer shall be on the dealer.

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(3) The powers under sub-section (1) may be exercised by the assessing authority even though

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W.P(C) No.6095/13

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the original order of assessment, if any, passed in the matter, has been the subject matter of an appeal or revision.

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(4) In computing the period of limitation for the purposes of this section, the time during which the proceedings for assessment remained stayed under the orders of a Civil court or other competent authority shall be excluded.”

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Having regard to the aforesaid statutory provision, when a period of limitation had been specified, which is not excluded by any other statutory provision and when the contention as stated in Ext.P1 is found to be erroneous, I am of the view that this writ petition is liable to be allowed.

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Accordingly, writ petition is allowed. Ext.P1 is quashed.

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Sd/-

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A.M. SHAFFIQUE, JUDGE

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Rp17/06/2016

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//True Copy//

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P.S to Judge

Jalaja Chandrasekharan v. the Commercial Tax Officer

Case brief

What is this about?

What did the court decide?

Jalaja Chandrasekharan v. the Commercial Tax Officer

Case brief

What is this about?

What did the court decide?

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