Kerala High Court
T.D. Davis vs State Of Kerala on 31 October, 1996
Equivalent citations: [2001]121STC567(KER)
JUDGMENT V.V. Kamat, J.
1. This proceeding has travelled through the three authorities, it must be said, to the utter misfortune of the situation. The statutory provisions of Section 19 of the Kerala General Sales Tax Act, 1963 stare in the face of the record to throw out the proceedings if the assessing authority has not proceeded in the required direction at any time within four years from the expiry of the year to which the tax relates. The assessment year is 1988-89. The starting point of the required period is the date of expiry of the year to which the tax relates. The assessment year being 1988-89, this date is March 31, 1989. The importance of the words proceed to determine is realised on a perusal of the proviso thereto requiring reasonable opportunity to be given to the assessee of being heard, making it statutory that the assessee must receive notice contemplating affording of reasonable opportunity in the context.
2. Although the Tribunal permitted this additional ground as a result of the issuance of the required notice having been issued out of the statutory period, precisely on September 18, 1993, the Tribunal, in the process of reasoning, has also taken a step further that the assessment in this case is covered by Section 19. After holding that the situation is governed by Section 19, the Tribunal proceeds further holding that proceedings should have been initiated before March 31, 1993.
3. However, the Tribunal has proceeded to observe thereafter, and quite erroneously, that in the meantime on June 10, 1991, the assessing authority served on the assessee form 50 notice. The Tribunal has held that this form 50 notice has been served within the period of limitation prescribed under Section 19 of the Act. In spite of the settled position of law in regard thereto, the Tribunal, acting on form 50 notice, held the situation to be within time when it is obvious that this form 50 notice would not be in accordance with the statutory compliance of Section 19 of the Act. The position is a settled one, clearly pointing out to the error in the context. The proceedings will be barred by time as such.
4. Be that as it may, going through the matter, we find that the limitation is a jurisdictional aspect. We do not see any justification on the part of the department to allow such cases to travel beyond the strict statutory period of compliance. It is not that none is concerned in the context of the situation with reference to the aspect of accountability in regard thereto. That is the internal problem of the department. However, we are sad that the situation of escapement of assessment to the extent of the assessee filing no returns at all, somehow is allowed to travel beyond the statutory limit. We feel that it should be the concern of the department to find out and locate the origin of responsibility and consequent accountability in regard thereto.
5. On plain aspects, the proceeding is time-barred. Consequently, the tax revision case succeeds resulting into the quashing and setting aside of the three orders.