Kerala High Court
Kerala Trade Links vs Commercial Tax Officer (Aa) on 5 February, 2009
Bench: C.N.Ramachandran Nair, C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 183 of 2009()
1. KERALA TRADE LINKS, ADICHIRA,
... Petitioner
Vs
1. COMMERCIAL TAX OFFICER (AA),
... Respondent
2. STATE OF KERALA REPRESENTED BY
For Petitioner :SRI.VIJAYAN. K.U.
For Respondent : No Appearance
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :05/02/2009
O R D E R
C.N.RAMACHANDRAN NAIR &
C.K.ABDUL REHIM, JJ.
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Writ Appeal No.183 of 2009
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Dated this the 5th day of February, 2009.
JUDGMENT
Ramachandran Nair, J.
The Writ Appeal is filed against the judgment of the learned Single Judge declining to entertain the writ petition on account of the alternate remedy available to the appellant by way of statutory appeal. However, in appeal, appellant contended that challenge is only against jurisdiction of the Audit Officer to issue escaped assessment under Section 25 of the KVAT Act, 2003 and the appellant does not want to challenge the order on merits or on any other grounds. We admitted the appeal on this ground and have heard counsel for the appellant and Government Pleader for the respondents.
2. The first respondent issued notice under Section 24 of the KVAT Act proposing to make best judgment assessment for the year 2005-2006. However, in reply, appellant pointed out that assessment under Section 24 cannot be done as the time for making assessment under the said provision is only two years from the end of the last day 2 of the relevant year. The first respondent thereafter issued Ext.P3 order which is one under Section 25 of the VAT Act which authorises "an Assessing Officer to make a turnover escaping assessment upto five years from the end of the relevant year". Appellant's case is that first respondent being an Audit Officer is not authorised to make an assessment under Section 25 which is the exclusive jurisdiction vested on regular Assessing Officer. Counsel further contended that the first respondent being an Audit Officer is entitled to make assessments only under Section 24 and he cannot take over the jurisdiction of the Assessing Officer who is authorised to make regular assessments and turnover escaping assessments under Section 25. The contention raised by Government Pleader is that the Assessing Officer referred to in Section 25 is defined in Section 2(v) of the Act under which any person can be authorised by the Commissioner to perform the functions of an Assessing Officer under the Act. Government Pleader has referred to Notification No.1/2005 issued by the Commissioner assigning various functions to officers appointed under the Act under SRO 318/2005. We find that the first respondent namely, Commercial Tax Officer 3 (Audit Assessment), Kottayam is authorised to perform the functions of an Assessing Officer besides other functions performed by him. We do not think the appellant's contention that Assessing Officer referred to in Section 25 has a meaning different from the meaning covered by the definition clause under which any officer can be authorised by the Commissioner to perform the functions of an Assessing Officer. Therefore, even though the regular Assessing Officer in charge of the assessee is the person to make turnover escaping assessment under Section 25 of the VAT Act, nothing bars an officer authorised under Section 2(v) to take over the functions of the regular officer in charge of assessment and pass an assessment order for a turnover escaping assessment. The contention of counsel for the appellant that the Audit Officer's main function is to make audit assessment under Section 24 is certainly correct. However, while scrutinising the accounts or other materials, if he notices that assessment under Section 24 is barred by limitation and if the assessment is otherwise tenable under Section 25, then certainly he is entitled to invoke Section 25 and make assessment as an Assessing Officer, if he is authorised by Commissioner under 4 Section 2(v) of the Act. Since in this case the first respondent is authorised by the Commissioner to function as an Assessing Officer, he is entitled to make a turnover escaping assessment under Section 25 as above. The very purpose of conferring concurrent jurisdiction on different officers is to ensure collection of tax, if the regular officer fails in it. We, therefore, find that the order passed by the first respondent is within his powers and so much so, order cannot be challenged on the ground of want of jurisdiction. The Writ Appeal is, therefore, dismissed. However, the freedom given by the Single Judge to file appeal against revised order is no longer available to the appellant by virtue of the condition imposed while admitting the Writ Appeal.
C.N.RAMACHANDRAN NAIR Judge C.K.ABDUL REHIM Judge pms