1977 (8) TMI 141 - HC - VAT and Sales Tax

Summary

Issues:
1. Jurisdiction of the Deputy Commissioner under section 35 of the Act.
2. Validity of the assessment order passed beyond the period of limitation.
3. Interpretation of the remittal order for reassessment.
4. Application of the time-limitation to the authority to whom the matter is remitted.
5. Alternative remedy by way of appeal and maintainability of the petition under article 226.

Jurisdiction of the Deputy Commissioner under section 35 of the Act:
The appeal in question involved a writ petition challenging an assessment order passed by the Deputy Commissioner of Sales Tax. The Deputy Commissioner exercised his suo motu power of revision under section 35 of the Kerala General Sales Tax Act. The key contention was whether the Deputy Commissioner had the jurisdiction to interfere under section 35 or if the case fell strictly under section 19 for escapement of turnover. The learned Judge concluded that the objection to the Deputy Commissioner's jurisdiction under section 35 could not be sustained, allowing the revisional power to be exercised.

Validity of the assessment order passed beyond the period of limitation:
The assessment order was challenged on the grounds that it was passed beyond the four-year limitation period set by section 35 of the Act. The learned Judge held that the order was without jurisdiction as it exceeded the time limit. However, the High Court disagreed, citing Supreme Court precedents that the time limitation does not apply to the assessing authority to whom the matter is remitted back by the revisional authority after setting aside the assessment.

Interpretation of the remittal order for reassessment:
The contention was raised that the sales tax assessment had not been entirely set aside but remitted back for a limited purpose. The High Court disagreed, holding that based on the terms of the remittal order, the assessment had indeed been set aside, requiring the assessing authority to start afresh.

Application of the time-limitation to the authority to whom the matter is remitted:
It was argued that the time limitation binding the revisional authority should also apply to the authority to whom the matter is remitted. The High Court rejected this argument, stating that the assessing authority is not an agent of the revisional authority and is bound to carry out its directions without being subject to the time limitation.

Alternative remedy by way of appeal and maintainability of the petition under article 226:
The Government Pleader contended that the assessee had alternative remedies through appeal under sections 36 and 39 of the Act, questioning the maintainability of the petition under article 226. Despite this argument, the High Court did not base its decision on this ground, as it had already ruled against the respondent on the merits of the case.

In conclusion, the High Court allowed the appeal, set aside the order of the learned Judge, and directed the dismissal of the original petition.