O.G. Auto Gas vs The Deputy Commissioner of Commercial Taxes and Others

Vineet Saran, J.

Sri K.M. Shivayogiswamy, learned AGA is directed to take notice on behalf of the respondents.

The brief facts of this case are that the appellant is an assessee registered under the Karnataka Value Added Tax Act, 2003 (for short ''Act''). For the tax period from September 2007 to March 2008, April 2008 to March 2009, April 2009 to March 2010, an assessment order was passed against the appellant, which was challenged in appeals filed by the assessee. On the dismissal of the appeals, the appellant filed Second Appeals before the Karnataka Appellate Tribunal at Bangalore. Vide order dated 04.06.2013 passed by the Tribunal, the appeals filed by the appellant-assessee were allowed by the following order:

"(a) Appeals are allowed.

(b) The orders of the lower courts are set aside.

(c) The matter is remanded to the AA for fresh consideration and to pass fresh orders after providing suitable opportunity to the assessee in production of books of accounts and evidence in compliance to the observations made in this judgment at para-10 with a liberty to invoke provisions in regard to levy of penalty and interest if any.

(d) The office of this Tribunal is directed to send lower court records along with a copy of judgment forthwith.

(e) Keep the original of this judgment in STA No. 2094/2012 and copies in connected files i.e., STA Nos. 2095 to 2124/2012."

Pursuant to the said order passed by the Tribunal, fresh assessment proceedings were taken up by the Assessing Authority. After examining the books of accounts and other evidences as had been produced by the assessee, a fresh assessment order dated 04.06.2014 was passed. Challenging the said assessment orders, the appellant filed Writ Petitions No. 33753/2014 and 34097-34126/2014 on the ground that no fresh notice under Section 39(1) of the Act, was given to the appellant prior to the passing of the fresh assessment order. The said writ petitions having been dismissed by the learned Single Judge vide judgment and order dated 21.07.2014, these writ appeals have been filed.

We have heard Ms. Vani H, learned Counsel appearing for the appellant and Sri K.M. Shivayogiswamy, AGA for the respondents and perused the record.

The submission of the learned Counsel for the appellant is that though the appellant was permitted or provided adequate opportunity to produce the books of account as well as other evidence as had been directed by the Tribunal vide its order dated 04.06.2013, yet since no fresh notice under Section 39(1) of the Act had been issued to the appellant prior to the passing of the fresh assessment order dated 04.06.2014 and since before rejecting the books of account also, no notice had been given, there was clear violation of the principles of natural justice. In the submission of learned Counsel for the appellant., the assessment order dated 04.06.2014 was thus liable to be set aside and the appellant ought not to have been relegated to the appellate jurisdiction under the KVAT Act.

From perusal of the record as well as the own admission of the appellant, it is clear that after remand order was passed for fresh assessment by the Assessing Authority, the appellant had been given full opportunity to produce the books of account as well as the other evidences, as had been directed by the Tribunal. This being a case of reassessment after remand, cannot be said to be a matter relating to original assessment where notice under Section 39(1) of the Act was required to be given. It is not denied that at the time of original assessment, such notice under Section 39(1) of the Act had been given to the appellant. In the present case, the matter was remanded by the Tribunal for reassessment after giving fresh opportunity. Such opportunity, as had been directed by the Tribunal, has admittedly been given to the appellant.

The contention of the learned Counsel for the appellant that prior to rejecting the books of account, another notice ought to have been given to the appellant to explain as to why the books of account of the appellant were not to be accepted, is not worthy of acceptance. The purpose of giving notice under Section 39(1) of the Act is, so that the assessee may get an opportunity to present its case. Undoubtedly, such notice had been given to the appellant at the time of original assessment.

Present is a case where reassessment has been directed under orders of the Tribunal, permitting the appellant to produce books of account and other evidence, which has been complied with. In our view, no fresh notice under Section 39(1) of the Act, was required to be given after the remand. We reiterate that this is not a case where the appellant is complaining that the order of the Tribunal with regard to production of books of account and other evidences was not complied by the Assessing Authority. As such, we are in agreement with the order passed by the learned Single Judge, whereby the writ petitions have been dismissed and it has been held that in case the appellant has any grievance, it has opportunity to file an appeal before the Appellate Authority as provided under the KVAT Act. In our view also, there is no violation of the principles of natural justice. We are also of the opinion that while holding that the books of account produced by the appellant were not to be accepted, the Assessing Authority was not obliged to give any notice to the assessee. As such, no interference is called for with the order of the learned Single Judge.

The appeals are accordingly dismissed.

As has already been directed by the writ Court, office shall return the certified copies of all the annexures produced in the writ petitions, subject to the appellant-writ petitioner filing photocopies of the same for the purpose of record.

It is further provided that filing of the writ petitions as well as these appeals before this Court shall be taken note of by the Appellate Authority, in case any appeal is filed by the assessee along with an application for condonation of delay.