Manas Electric Company vs The Commissioner of Commercial Taxes and Others

Gopala Gowda, J.—The Appellant is a proprietary concern and Registered dealer under the provisions of the Karnataka Sales Tax Act, 1957 (hereinafter referred to as the ''Act'', for short) has questioned the correctness of the order passed by the learned Single Judge in Writ Petition No. 22300/2005 disposed of on 09.12.2005, in which proceedings, he had questioned the order of reassessment dated 18.08.2005 passed regarding escaped turnover sales tax by respondent No. 3 in exercise of his power u/s 12-A(1) of the Act, as he was appointed by the 1st respondent in exercise of his power u/s 3-A(1) of the Act, urging various legal contentions.

The brief facts and the rival contentions are adverted to in this order for the purpose of appreciating the same to find out whether the order impugned in this writ appeal warrants interference and the order of re-assessment made by the 3rd respondent requires to be quashed by this Court in exercise of its Appellate jurisdiction and power?

The appellant-Assessed had submitted returns for the financial years 1995-96 to 1997-98 to the Assessing Authority. The 5th respondent conducted an inspection on 05.03.2002 of the appellant-establishment to find out as to whether there is any escaped turnover sales tax due to the department. He found that there is an escaped sales tax payable to the department. Thereafter, he submitted report to the 1st respondent along with necessary documents. The 1st respondent, in exercise of his power under Sections 3-A(1) of the Act, has appointed the 5th respondent as the Assessing Authority to re-assess the escaped sales tax on total turnover from the Appellant in exercise of his power u/s 12(A)(1) of the Act. He has applied his mind and taken a decision and initiated the proceedings by issuing notice on 30.09.2002 to the appellant calling upon him as to why there shall not be a re-assessment of sales tax payable to the department as there has been escaped turnover for payment of Sales Tax for financial years 1995-96 to 1997-98. Though notice was served, the appellant neither filed his statement of objections nor submitted an application to the 1st respondent regarding the reassessment order of escaped sales tax on his turnover of his proprietary concern. The 1st respondent, at the request of the appellant to change the Assessing Authority, has again passed an order on 02.12.2002 canceling the appointment of the 5th respondent as the Assessing Authority and in his place, appointed the 3rd respondent as the Assessing Authority to assess the escaped sale tax of the appellant concern turnover. In pursuant to the same, he has passed Reassessment orders dated 18.08.2005 for re-assessing the sale tax for the financial years 1995-96 to 1997-98 and reassessed the same at Rs. 6,373/-, Rs. 1,00,020/-, Rs. 2,97,242/-, Rs. 87,481.00/-, Rs. 4,19,922/- (Annexures E1 to E5) and also imposed penalty. The legality and validity of the said orders were questioned by the Appellant in the writ petition urging various legal contentions and prayed to quash the same by issuing a writ of certiorari.

The main contention urged by the learned Counsel for the appellant is that the re-assessment orders passed by the 3rd respondent is barred by limitation as per Section 22(B) of the KST Act and further he urged that the 3rd respondent is not a competent officer to pass an order of reassessment regarding escaped Tax on turnover of the appellant, who has been appointed by the 1st respondent and therefore he had prayed for quashing of the above said orders as the same are void abinitio in law.

The learned Counsel for the appellants submit that the learned Single Judge, at the stage of preliminary hearing did not accept any one of the grounds and he had erroneously rejected the writ petition by answering the legal contentions against the Appellant and in favour of the revenue holding that the proceedings u/s 12-A(1) was initiated by the 5th respondent by issuing notice on 30.09.2002 to the appellant. The orders of re-assessment are passed on 18.08.2005, which are within the prescribed period of limitation stipulated u/s 22(B) of the KST Act. Apart from the said reason the observations of the learned Single Judge stating that the appellant has got an alternative remedy under the provisions of the KST Act is factually correct. Therefore, the learned Single Judge had rightly declined to grant relief and dismissed the writ petition at the stage of preliminary hearing itself. The correctness of the same is questioned before this Court by placing strong reliance upon Section 12(A)(1) of the Act r/w. Rule 4 of the Rules.

It is further urged that the 5th respondent, upon whom the power was conferred by the 1st respondent to reassess the escaped Sales Tax liability on the escaped turnover by the appellant for the financial years referred to supra is not a competent officer to exercise his power having regard to the undisputed fact that the turnover of him exceeds more than 5.1 lakhs per financial year. Therefore, he had contended that neither assessment nor reassessment order should have been done by the Assistant Commissioner of Commercial Taxes only, who has got jurisdiction upon the Area where the proprietary concern of the appellant is situated to whom the power should have been conferred by the 1st respondent in exercise of his power u/s 3-A(1) of the KST Act. He has passed an order on 2.12.2002 after receiving the report from 5th respondent conferring power upon the 5th respondent to re-assess the escaped Sales Tax on total turnover due from the appellant to the Department and he initiated the proceedings by issuing notice and subsequently respondent No. 3 had passed the impugned order, which is barred by limitation.

Therefore, the learned Counsel submits that the said orders are liable to be quashed, as they are void abinitio in law. The further legal contention urged by him by placing strong reliance upon Section 22-B of the Act is that the initiation of proceedings is on 30/9/2002. In the aforesaid provisions, with a specific purpose the words ''initiation of proceedings'' are used. The notice for initiation of the proceedings was issued by the respondent No. 5 in exercise of his power to the Appellant. Therefore the date of initiation of proceedings must be taken as the date of conferment of power upon 5th respondent by the 1st respondent as he is the Assessing Authority u/s 3-B of Sub-section 3(a) of the Act. If, the dates are taken as the date of initiation of the proceedings against the appellant for re-assessment of escaped Sales Tax on turnover the orders should be passed within three years from that date as specified u/s 22-B of the Act.

The next legal contention urged on behalf of the appellant is that Section 12(A)(1) of the KST Act prescribes eight years as the outer time limit for initiation of the proceedings against the assessee for re-assessment from the date of the assessment for the concerned financial year submitted by the appellant. In the instant case, the period for re-assessment of escaped Sales Tax on turnover is for financial years 1995-96 and 1997-98 and if, the ending date of the financial year is taken into consideration, eight years have lapsed and therefore, on this ground also the orders of re-assessment of escaped Sales Tax on turnover are vitiated in law and therefore liable to be quashed.

Smt. Sujatha, the learned Additional Government Advocate appealing on behalf of the respondents has sought to justify the re-assessment orders passed by the 3rd respondent, which are affirmed by the learned Single Judge interalia contending that the same are in conformity with Section 12(A)(1) r/w. Section 22(B) of the KST Act as the 5th respondent was appointed, though he may not be the Assessing Authority in terms of the definition of Section 2(1)(f) of the Act r/w, Rule 4 of the KST Rules as the gross turn over of the appellant is more than 7.5 lakhs and even less for making the re-assessment of escaped turnover assessment for re-assessment Tax of the appellant. The 1st respondent has got statutory power u/s 3-A(1) of the Act to appoint any one of the officers mentioned in the said Section as Assessing Authority for the purpose of passing re-assessment orders regarding Sales Tax liability of the registered dealer u/s 12-(A)(1) of the Act. That power has been rightly exercised in the instant case by the 1st respondent on the basis of the report submitted by the 5th respondent in respect of the appellant-establishment on 26.03.2002 in exercise of his power u/s 3-A(1) of the Act for the purpose of Section 12(A)(1) of the Act. Exercise of power by him for re-assessment of escaped turnover for re-assessment for the financial year has to be made by the Assessing Authority within eight years from the date of initiation of proceedings, namely, 30.09.2002. Therefore, exercise of power by 5th respondent under the above said provision is within the period of limitation prescribed under the provision of Section 12-A(1) of the Act, thereafter, within three years from the date of initiation of the proceedings, namely, from 30.09.2002, re-assessment orders are required to he passed by the Assessing Authority against the Appellant, the same are also passed within the period of limitation by 3rd respondent as prescribed under the provision of Section 22(B) of the Act.

She has further submitted that from the date of initiation of proceedings by the 5th respondent against the appellant, having regard to the order passed by the 1st respondent, changing the 5th respondent and appointing the 3rd respondent as the Assessing Authority in exercise of his power u/s 3-A(1) of the K.S.T Act at the instance of the appellant, the orders of re-assessment passed by him from the date of initiation of the proceedings namely, the date of issuance of notice by the 5th respondent to the appellant for re-assessment of escaped turnover is within three years. Therefore, the contention urged by the appellant''s counsel that the re-assessment orders passed by respondent No. 3 are barred by limitation is without any factual foundation and the same is liable to be rejected.

The learned Government Advocate further made submissions contending that Rule-4 of the K.S.T. Rules has no application to the case on hand. Having regard to the statutory provisions provided u/s 12(A)(1) r/w Section 3-A(1), the Commissioner of Sales Tax is empowered to appoint any officer for the purpose of re-assessment of escaped turnover for payment and such officer can exercise his power as the Assessing Authority u/s 12(A)(1) of the Act for the above purpose. Therefore, she contends that the reliance placed upon Rule 4 of the K.S.T. Rules by the Appellant''s counsel also does not support his case. Hence, she has contended that the contention urged in this regard is liable to be rejected.

We have carefully examined the above said rival contentions urged on behalf of the parties with reference to the relevant statutory provisions of the K.S.T Act and Rules to answer the same on the basis of the legal contentions urged in the case. The following points would arise for our consideration and determination:

(a) Whether the initiation of the proceedings by the Assessing Authority appointed u/s 3-A(1) of the K.S.T Act in respect of the financial years of the appellant-establishment from 1995-96 to 1997-98 is within eight years as provided u/s 12(A)(1) of the Act ?

(b) Whether the initiation of proceedings and passing of the re-assessment orders by the respondent No. 3 is within three years as stipulated u/s 22-B of the Act from the date of initiation of proceedings against the appellant?

(c) Whether the order of the learned Single Judge warrants our interference in this appeal. ?

After careful examination of the provisions of the Act and Rules, we have to answer the above points in favour of the Revenue by recording our following reasons:

To appreciate the above rival legal contentions urged on behalf of the parties, it is necessary for us to extract the provisions of Sections 2(1)(f), 3-A(1), 3-B(1)(a) 3-B(2)(a), 12A(1) and 22-B, 3(b) of the K.S.T. Act and Rule 4 of the K.S.T. Rules, which reads as under:

2(1)(f) : "Assessing Authority" means a Commercial Tax Officer or Assistant Commissioner of Commercial Taxes or any other officer of the Commercial Taxes Department authorised to make any assessment by or under this Act."

3-A. Instructions to subordinate authorities.- (1) The State Government and the Commissioner may from time to time, issue such orders, instructions and directions to all officers and persons employed in the execution of this Act as they may deem fit for the administration of this Act, and all such officers and persons shall observe and follow such orders, instructions and directions of the State Government and the Commissioner:

Provided that no such orders, instructions, or directions shall be issued to interfere with the discretion of any Appellate Authority in exercise of its appellate functions.

xxxx xxxxx xxxxxxx xxxx 3-B: Jurisdiction of officers.-(1)(a) The Additional Commissioner shall perform their functions in respect of such areas or of such dealers or classes of dealers or of such cases or classes of cases as the Commissioner may direct.

3-B(2)(a): The Deputy Commissioners shall perform their functions in respect of such areas or of such dealers or classes of dealers or of such cases or classes of cases as the Commissioner may direct.

12-A: Assessment of escaped turnover-(1) If the assessing authority has reason to believe that the whole or any part of the turnover of a dealer in respect of any period 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 under this Act or any deduction or exemptions have been wrongly allowed in respect thereof, the assessing authority may, notwithstanding the fact that the whole or part of such escaped turnover was already before the said authority at the time of the original assessment or re-assessment but subject to the provisions of Sub-section (2), at any time within a period of eight years from the expiry of the year to which the tax relates, proceed to assess or re-assess to the best of its judgment the tax payable by the dealer in respect of such turnover after issuing a notice to the dealer and after making such enquiry as it may consider necessary.

xxxx xxxxxx xxxxx xxxx 22-B: Limitation in regard to passing of orders in respect of certain proceedings.- (1) Notwithstanding anything contained in Sections 12-A, 21 and 22-A, where any proceedings are initiated u/s 12-A or any records have been called for under Sections 21 or 22-A, the authorities concerned shall pass orders referred to in the said sections, within a period of two years from the date of initiation of such proceedings or calling for the records, as the case may be.

Provided that in respect of proceedings initiated or records called for before the date of commencement of the Karnataka Taxation Laws (Amendment) Act, 1997, orders shall be passed within a period of two years from such commencement.

xxx xxx xxx xxxx xxx Rule 4: (1) An application for registration under Sub-section (1) of Section 7 shall be made not later than thirty days from the date on which the dealer becomes liable to pay tax under the Act.

(2) An application for registration under Sub-section (2) of Section 7 may be made at any time after the commencement of the Act.

(3) A fee of rupees five shall be payable in respect of every application for Registration under Sub-rule (1) of Sub-rule (2); and such fee may be paid in the form of Court fee stamps affixed to such application.

It is an undisputed fact that the appellant is a registered dealer under the provisions of the K.S.T Act and submitted the returns to the Department in respect of his turn-over for the financial years 1995-96 and 1997-98 for payment of Sales Tax under the provisions of the KST Act for the above period. The 5th respondent, who is from the intelligence unit had conducted an inspection of the appellant''s-establishment to find out whether there is any escaped turnover for the aforesaid period, which warrants re-assessment of the same for payment of Sales Tax by him to the Department. After inspection made by him, he had submitted all the records on 05.03.2002 to the 1st respondent for his further course of action. On 26.03.2002, the 1st respondent exercised his power under Section. 3-A(1) and appointed the 5th respondent to perform the functions u/s 3-B(3)(a) assigned to him in respect of the Appellant''s establishment to find out as to whether any escaped turnover for the above financial years is required to be re-assessed and fastened with Sales Tax liability payable to the Department. The above said provision shall not be related to Section 2(1)(f) of the Act as the Assessing Authority either for assessment or re-assessment of Sales Tax depends upon the total turnover alone of the dealer. As per the provision of Section 3-A(1) of the Act, the 1st respondent is conferred power to appoint the assessing authority to reassess the CST or KST to the Department u/s 12(A)(1). Section 3-A(1) confers the power on the 1st respondent to issue orders, instructions and directions to the Additional Commissioner, Joint Commissioner, Deputy Commissioner, Commercial Tax Officer and Assistant Commissioner of Commercial Tax Office. The Commissioner may pass an order under the above provisions of the Act by distributing and allocating the work to any of the officers referred to above to assess or re-assess the Sales Tax payable by the dealers to the Department. The reassessment of the escaped turnover for fastening the Sales Tax liability upon the dealer, the power of the 1st respondent is traceable u/s 12(A)(1) that must be r/w Section 3-A(1). Section 3-A(1) empowers the Commissioner of the Sales Tax Department to appoint his subordinate officers to discharge their function in respect of such areas or such dealers or class of dealers or of such cases or classes of cases as the Commissioner may direct them to re-assess the Sales Tax due from the registered dealers to the Department. This provision does not state conferment of power upon the officer of particular rank only for reassessment of Sales Tax on the basis of the total turn over of the dealer. The power conferred upon the 1st respondent for appointment of officers referred to in the provisions of Section 3-A(1) of the Act as assessing Authority for re-assessment is independent from the definition of Assessing Authority u/s 2(1)(f) read with Rule 4 of the Rules which provides for regular assessment of Sales Tax of a registered dealer. Therefore, the contention urged by the learned Counsel for the Appellant that the 5th respondent was not competent to reassess the escaped turnover for re-assessment of Sales Tax of the appellant-establishment placing reliance upon Section 2(1)(f) is wholly untenable in law, hence the contention urged on behalf of the appellant by us cannot be accepted by us and the same is rejected.

Having answered the above said contentions against the appellant, we have examined whether the reassessment of the Sales Tax liability to the Department from the date on which the appointment of the 5th respondent was made on the basis of the report dated 05.03.2002 and initiation of the proceedings against the appellant is on the basis of his appointment as Assessing Authority after considering the report for the purpose of re-assessment of Sales Tax from the appellant which is within eight years as provided u/s 12-A(1) of the Act. If the first financial year 1995-96 is taken into consideration, the initiation of the proceeding against the appellant should have been on or before 31.03.2003, the notice has been issued by the 5th respondent to the appellant on 30.09.2002, the same is within the period of limitation stipulated under the above provision of the Act. So the initiation of proceedings as provided u/s 22-B was made by the 5th respondent for re-assessment of Sales Tax against the appellant u/s 12-A(1) of the Act is on the basis of the report submitted by the vigilance squad headed by 5th respondent on the inspection made by them. The date of appointment of either the 5th respondent or the 3rd respondent for the purpose of computation of 2 years as provided u/s 22-B of the Act is not the relevant date to be taken into consideration for computation of limitation. The initiation of the proceedings by the Assessing Authority appointed by the 1st respondent for re-assessment by issuing notice to the appellant after applying mind by the Assessing Authority who is empowered to do so is relevant fact for the purpose of finding out whether the same is within the period of limitation of 3 years period stipulated u/s 22-B of the Act. If the initiation of proceedings is well within eight years period as stipulated u/s 12-A(1) of the Act from the date of submission of returns of the financial year by the appellant, the notice must be issued to the Assessee for re-assessment on the basis of the spot inspection report submitted by the vigilance squad, the date of submission of inspect report to the 1st respondent by the 5th respondent does not amount to initiation of the proceedings against the appellant for reassessment regarding escaped turnover fastening Sales Tax liability upon the assessee by passing re-assessment order. The submission of the report by the 5th respondent to the 1st respondent for initiation of the proceedings against the appellant for re-assessment of turnover Tax. The Commissioner 1st respondent was required to find out whether the initiation of proceedings for re-assessment of the assessment against the appellant was required or not u/s 12(1)(A) of the Act on the basis of the materials collected by the Vigilance Officer from the Appellant. The words ''proceedings'' used in Section 22-B of the Act but the word ''notice'' is not used in the above provision. The phrases ''initiation of the proceedings'' as stated in the above provision has to be construed and understood by us that the proceedings can be initiated by issuing a notice to the assessee and that notice must be issued within eight years as provided u/s 12(1)(A) of the Act for the purpose of re-assessment of escaped turnover for Sales Tax liability from the appellant. The issuance of notice by the 5th respondent to the appellant is within eight years from the date of submission of returns for the financial years 1995-96 submitted by the appellant. Therefore, the submission made by the learned Counsel for appellant, placing reliance upon the decision of this Court reported in S. Subba Rao Vs. Commissioner of Commercial Taxes in Mysore, Bangalore, That The ''expression'' shall be exercisable under Act 1957 as it refers to the commencement of the exercise of power referred to therein and not completion of exercise of that power. The reliance placed upon this judgment by the appellant''s counsel is misplaced having regard to the provision u/s 22-B of the Act, by way of Amendment to the Act, which provision states that assessment orders must be passed within 3 years from the date of initiation of such "proceedings" or "calling for the records" as the case may be. It is not a case of calling for the records from the Appellant, but, it is the case of initiation of proceedings on the basis of the report of the Vigilance Squad. Therefore, the said judgment has no application to the fact situation.

The reliance placed upon by the learned Counsel for the appellant on another Division Bench decision of this Court reported in 1999 (12) STC 578 (Assistant Commissioner Of Commercial Taxes, Davanagere And Others) is also not applicable to the case on hand as it is not the case of calling for records and reliance placed on another decision of the Supreme Court in the case of A Vaikuntappa Setty And Co. and Ors. v. Commissioner Of Commercial Taxes, Bangalore 1999 SC 647 has also no application to the case on hand as the facts are distinguishable.

The learned Single Judge has rightly pointed out that the notice issued by the 5th respondent to the appellant is the starting point for initiation of proceedings against him for re-assessment of escaped turnover for fastening Sales Tax liability upon him. No doubt, the 5th respondent who was initially appointed by the first respondent for initiating the proceedings against the appellant for reassessment has not concluded the proceedings, as the appellant had raised objection in writing regarding competency of 5th respondent for re-assessing the turnover of the appellant for the above financial years and to pass re-assessment orders. Therefore the Commissioner has appointed the 3rd respondent as the Assessing Authority for which he is empowered u/s 3-A(1) of the Act. Merely because the 1st respondent had withdrawn the conferment of power upon the 5th respondent to initiate proceedings against the appellant for reassessment of escaped turnover and fastening the Sales Tax liability, the proceedings already initiated were neither withdrawn nor cancelled. The proceedings were validly initiated by the 5th respondent as he was empowered to do so for the purpose of re-assessment of Sales Tax on escaped turnover against the appellant, no doubt the proceedings were not concluded by him. The Commissioner of Sales Tax is empowered to confer power upon such officer including to withdraw the conferment of power upon such officer at any stage of the proceedings for valid reasons. The cancellation of appointment of the 5th respondent as per Annexure-G and appointment of the 3rd respondent in his place cannot be construed as, the proceedings initiated by the 5th respondent were terminated as the proceedings were continued by the 3rd respondent as he was also validly appointed by the Commissioner u/s 3-A(1) of the Act. Therefore, the issuance of notice to the appellant by the 3rd respondent after his appointment, cannot be construed as he independently initiated the proceedings after his appointment, as the proceedings were already initiated by the 5th respondent against him on the basis of report of the Vigilance Squad. Even as on the date of his appointment and issuance of notice, the proceedings for re-assessment to be made is within eight years as stipulated u/s 12(A)(1) of the Act. The other contention urged by the learned Counsel is that the 3rd respondent by name Mr. Lakshmipathaiah is not the Assessing Authority who was appointed vide order at Annexure-G for making reassessment orders against the appellant, because, the Assessment Orders (Annexures-E1 to E5) were passed by one Sri. K.S. Kodandarame Gowda, who was not competent to pass orders. This contention of the learned Counsel also must fail for the reason that the appointment is by virtue of the office of the 3rd respondent and incidentally Mr. Lakshmipathaiah was the officer at that point of time, therefore the same shall not be construed as the conferment of power upon the person Sri. Lakshmipathaiah but the conferment of power as Assessing Authority can be only upon the officer who will be in office to discharge his statutory duties as provided u/s 3-B2(a) of the Act. Therefore, the contention urged in this regard also must fail.

For the reasons stated supra, we are in full agreement with the conclusion arrived at by the learned Single Judge on the contentious issue that arose in the case though he has not adverted to the provisions and rival legal contentions urged in the writ petition. We are supplementing our reasons to the order of the learned Single Judge as stated supra which is impugned in this Appeal to sustain the same. For the reasons stated supra, we do not find any illegality or irregularity in reassessing the CST amount due to the Department vide re-assessment orders, which were impugned in the writ petition. Accordingly, this appeal dismissed as the same is devoid of merits.