2009 (11) TMI 960 - HC - VAT and Sales Tax

Whether the partial compounding applied for by the assessee and approved by the assessing officer is permissible under the provisions of Section 7(1)(a) of the Act? - Held that - the compounding scheme for payment of tax opted by the assessee and accepted by the officer, does not achieve finality, because it is subject to supervisory jurisdiction by the Deputy Commissioner. Therefore, if the scheme approved by the officer is in violation of the charging provision, then the Deputy Commissioner has power under Section 35 to correct the same which extends to even correction of final assessment wherein tax is finally determined. No contract between assessee and assessing officer is conceived under the Act and no order of the officer prejudicial to the Revenue is immune from scrutiny by the Deputy Commissioner under Section 35 of the Act. The assessee will have liability to pay interest partly because of the mistake committed by the officer in approving the compounding applied for by the assessee in violation of the charging provision - the assessing officer is directed to limit levy of interest under Section 23(3A) or Section 23(3) at compensatory rate of 12% per annum, for the entire period of delay.

Issues Involved:
1. Whether the Sales Tax Appellate Tribunal was justified in upholding the revision of assessee's assessment at the compounded rate by including the turnover of all branches.
2. Whether the order of the Deputy Commissioner was time-barred.
3. Whether partial compounding applied for by the assessee and approved by the assessing officer is permissible under Section 7(1)(a) of the K.G.S.T. Act.
4. Whether the Deputy Commissioner had jurisdiction to revise the regular assessment under Section 35.
5. Whether the compounding scheme is a contract between the Department and the assessee, and if it can be revised by the Deputy Commissioner.

Detailed Analysis:

Issue 1: Justification of Tribunal's Decision on Revision of Assessment

The primary question was whether the Sales Tax Appellate Tribunal was justified in upholding the revision of the assessee's assessment at the compounded rate by including the turnover of all branches. The Tribunal found that partial compounding is not permissible under Section 7(1)(a) of the K.G.S.T. Act. The Tribunal concurred with the Deputy Commissioner that the assessee's request for partial compounding was impermissible and upheld the revision of the assessment to include the entire turnover of all branches.

Issue 2: Time-Barred Order

The assessee contended that the Deputy Commissioner's order was time-barred. The Tribunal found that the order revised by the Deputy Commissioner was a regular assessment completed under Section 17(3) and that the order directing revision of assessment under Section 35 was issued within the prescribed time frame. Therefore, the Tribunal rejected the challenge against the order of the Deputy Commissioner on the ground of limitation.

Issue 3: Permissibility of Partial Compounding

The court examined whether partial compounding applied for by the assessee and approved by the assessing officer is permissible under Section 7(1)(a) of the Act. The court found that Section 7(1)(a) provides for payment of tax at a compounded rate for the business as a whole, irrespective of the number of branches. The assessee, engaged solely in the business of gold and silver ornaments, is liable to be assessed under Section 7(1)(a) for the entire turnover covering the head office and all branches. The Deputy Commissioner rightly found that the assessment completed was against the statutory provisions, leading to the revision of the assessment.

Issue 4: Jurisdiction of the Deputy Commissioner

The assessee argued that the Deputy Commissioner lacked jurisdiction to revise the regular assessment since the mistake was in the approval granted in Form No.21A. The court held that Form No.21A and the demand notice issued under Form No.22 are provisional and should find acceptance in a regular assessment. The Deputy Commissioner is competent to revise any order prejudicial to the interest of the revenue, including the regular assessment completed under Section 17(3). The Tribunal rightly rejected the assessee's challenge on the ground of limitation.

Issue 5: Compounding Scheme as a Contract

The assessee contended that the compounding scheme is a contract between the Department and the assessee, and thus, cannot be revised by the Deputy Commissioner. The court rejected this argument, stating that the compounding scheme opted by the assessee and accepted by the officer does not achieve finality and is subject to supervisory jurisdiction by the Deputy Commissioner. The Deputy Commissioner has the power under Section 35 to correct any order, including the final assessment, if it is prejudicial to the revenue.

Conclusion:

The court dismissed the Tax Revision Case, upholding the Tribunal's decision. The Deputy Commissioner was found to have acted within his jurisdiction and time frame to revise the assessment. The court directed the assessing officer to limit the levy of interest at a compensatory rate of 12% per annum due to the mistake committed by the officer in approving the compounding application.

← Previous Next →