Arihanth Automobiles vs Deputy Commercial Tax Officer-I and Others

G. Raghuram, J

Heard Sri Narendra Chetty, learned counsel for the petitioner and Sri P. Balaji Varma, the learned Special Government Pleader for Commercial Taxes for the respondents. An order of assessment dated June 19, 2012 passed by the first respondent for the tax period February 1, 2009 to March 31, 2011 and upheld in appeal by the third respondent vide ADC Order No. 2129, Appeal No. 37/2012-13 (KNL), dated November 8, 2012 is challenged in this writ petition, inter alia, on the ground that authorization was issued by the Deputy Commissioner (CT), Kurnool, to the first respondent-assessing authority to assess the petitioner''s case in case of detection of any under-declaration of turnover (emphasis added).

Pursuant to an authorization for audit, the first respondent conducted audit on September 6, 2011 and forwarded audit report to the Deputy Commissioner concerned. The Deputy Commissioner, thereupon passed an order dated January 21, 2012 authorizing the first respondent to proceed to assessment if satisfied that there was an under-declaration of turnover.

The petitioner-assessee questioned the order of assessment dated June 19, 2012 before the third respondent, on the ground that there was no valid authorization for assessment as also on the merits of the assessment order. The third respondent while rejecting the appeal despite noticing that the Deputy Commissioner concerned had issued a conditional authorization to assess the petitioner''s case, in case of detection of any under-declaration of the turnover, declined to invalidate the assessment order. In the circumstances, the primary and appellate orders are challenged in this writ petition.

The order dated January 21, 2012 passed by the Deputy Commissioner (CY), Kurnool fails to record the said authority''s satisfaction (on perusal of the record of audit) that under-declaration of turnover is detected and therefore an assessment should be made. Instead, the authorization for assessment delegates the satisfaction inhering in the Deputy Commissioner to the assessing authority.

Sri P. Balaji Varma, learned Special Government Pleader for Commercial Taxes, states that the record of the Deputy Commissioner (CT), Kurnool if holistically scrutinized would reveal that the said authority was himself satisfied as to the need for assessment; and invites us to peruse the record of the Deputy Commissioner (CT), Kurnool. We regretfully decline the invitation.

As pointed out by the Supreme Court in Commissioner of Police, Bombay Vs. Gordhandas Bhanji, public orders publicly made should rest for their vitality on the content of the order and errors in such order could not be rectified by reference to antecedent material on record. As the order of authorization dated January 21, 2012 passed by the Deputy Commissioner (CY), Kurnool, facially and unambiguously fails to record the authority satisfaction as to the need for assessment and delegates the satisfaction to the assessing authority, the order of authorization is unsustainable and the consequent order of assessment and confirmation of the order of assessment by the appellate order, fall foul of the law declared in Sri Balaji Flour Mills Vs. The Commercial Tax Officer and Others, . These orders are accordingly quashed. The writ petition is allowed after hearing Sri Narendra Chetty, learned counsel for the petitioner and Sri P. Balaji Varma, learned Special Government Pleader for Commercial Taxes for the respondents. But in the circumstances without costs. It is however open to the duly authorized officer to pass a fresh order of assessment, in accordance with law.