2018 (11) TMI 1912 - HC - VAT and Sales Tax

Lack of jurisdiction of the Assessing Officer in exceeding the remand - adjudication of the case further - service of notice on the Special Commissioner on 03.08.2018 - OHA could have validly decided the appeal on or before 18.08.2018 - HELD THAT - This Court is of the opinion that the reasons adduced by the Special Commissioner in the circumstances of the case are persuasive and reasonable given that at the stage when the OHA received the notice, he does not appear to have been delegated with the powers under Section 68 of the DVAT Act. However, on the merits of the impugned order, the court is of the opinion that the Special Commissioner has not applied her mind to the limited scope of the remand which the first OHA order had required. The Special Commissioner is directed to decide the issue as expeditiously as possible having regard to the scope of the remand, made by the order of 13.11.2013, by the Special Commissioner while deciding the objection in the first instance against the first assessment order. Petition allowed in part.

Summary

Issues:
1. Jurisdiction of the Assessing Officer in exceeding the remand.
2. Validity of the notice served under Section 74(7) and DVAT 41.
3. Application of mind by the Special Commissioner to the limited scope of the remand.

Analysis:
1. The High Court examined the objection raised by the writ petitioner against the order made by the Special Commissioner. The Court noted that the Assessing Officer had conducted a de novo assessment instead of confining to the matters remanded by the Objection Hearing Authority (OHA) during the first appeal stage. The Tribunal had earlier observed the lack of jurisdiction of the Assessing Officer for exceeding the remand. However, the Court held that the Tribunal could not decide the merits of the second assessment order made pursuant to the remand. The Court directed the Special Commissioner to decide the issue expeditiously in line with the scope of the initial remand order.

2. The petitioner raised objections regarding the service of notice under Section 74(7) and DVAT 41. The Special Commissioner pointed out that the DVAT 41 was not served in person to the predecessor, and the undersigned OHA did not receive the notice as required by rule 56. The Court found the reasons provided by the Special Commissioner to be reasonable, considering the lack of delegation of powers under Section 68 of the DVAT Act. However, the Court criticized the Special Commissioner for not applying her mind to the limited scope of the remand as required by the first OHA order.

3. The Court directed the Special Commissioner to reconsider the issue with a focus on the scope of the remand made by the initial order. It allowed the petitioner to challenge any consequential order before the Tribunal based on the final outcome of the proceedings following the remand. The writ petition was partly allowed by the Court in the mentioned terms, emphasizing the need for a thorough consideration of the remand scope in subsequent assessments.