2021 (11) TMI 5 - HC - VAT and Sales Tax

Principles of natural justice - proper service of notice/order as per 53 of the KST Rules or not? eligibility for the deduction of tax collected for the period 1995-96 - Daughter after the marriage is falls under the definition of his family as per 53 of the KST Rules or not. Service of assessment orders - HELD THAT - What is relevant is the service of the assessment order dated 27.05.2010. Even as per clause (c) of Rule 53 of the KST Rules, if the assessment orders are sent to the assessee by registered post on the address of such dealer/assessee/licensing authority known to the assessing officer or licensing authority, that would be suffice for the due service of notice/order on the assessee. Moreover, the alleged defective service of assessment orders would not prejudice the rights of the assessee for the reason that First Appeals were preferred on 08.11.2010 against the said assessment orders dated 27.05.2010 well within the period of limitation. The First Appellate Authority has considered the matter on merits and dismissed the appeals on 29.11.2011, against which appeals were preferred before the Tribunal and the same came to be dismissed on merits on 25.10.2017. Being aggrieved by the said order of the Tribunal, these revision petitions are filed. The assessee now raising the ground of defective service of the assessment order on the assessee has no relevancy for adjudicating the revision petitions filed against the orders of the Tribunal impugned - question of law framed to the extent of defective notice is wholly untenable and deserves to be rejected. Retirement of the partners Sri. K.M. Nagaraj and N. Manjunath, though noticed by the Assessing Authority - HELD THAT - The retiring partners Sri. K.M. Nagaraj and Sri. N. Manjunath are required to be considered as necessary parties for proceeding with the assessment founds foul of the well settled principles of law since the assessment could be proceeded with, anyone of the partner of the firm, the same being not the execution proceedings i.e., recovery proceedings. It is also significant to notice from the original records placed by the learned Additional Government Advocate appearing for the revenue that Mr. N. Ajith has addressed a letter dated 29.07.2009 to the DCCT Recovery, requesting the said authority (Assessing Authority) to send all the correspondences in future to his brother s place Sri. N. Amith as he was not capable of handling the matter and thereby he has authorized his brother Sri. N. Amith to show the accounts and receive the notice/correspondences from the assessing authority. This letter was received on the same day by the assessing authority i.e., on 29.07.2009. This would clarify that no objections were raised by Sri. N. Ajith before the Assessing Authority regarding the defective service of notice or disputing the partnership deed dated 01.04.1992, as now canvassed by the learned counsel for the assessee. Failure of Tribunal to allow the deductions claimed with reference to the tax collected and paid - HELD THAT - In the absence of the relevant books of accounts and documents placed before the authorities, it is unrealistic for this Court to expect any other finding from the Authorities/Tribunal. It is well settled legal principle that the burden of proof to justify any claim certainly lies on the dealer under Section 6-A of the KST Act. The same has been reiterated by the Tribunal. In the absence of discharge of such burden and not filing returns in Form-4 for some assessment years, claiming the deduction with respect to the tax amount said to have been collected and paid cannot be accepted. Accordingly, the arguments advanced by the learned counsel for the assessee in this regard also stands negated. There are no reasons to accede to the submissions made by the learned counsel appearing for the assessee and accordingly answer the substantial questions of law raised in favour of the Revenue and against the assessee. Revision petition dismissed.

Issues:
1. Proper service of notice/order as per Rule 53 of the KST Rules
2. Eligibility for deduction of tax collected for the period 1995-96
3. Definition of family under Rule 53 of the KST Rules
4. Remand by the Tribunal
5. Continuity of partnership after the death of a partner
6. Inclusion of legal heirs in the case
7. Service of notice on the legal heirs after the death of a partner

Analysis:

1. The first issue revolves around the proper service of notice/order as per Rule 53 of the KST Rules. The argument presented was that the notice was served on a married daughter who was not an adult member of the family, thus challenging the validity of the service. However, the court dismissed this argument, stating that the concept of "family" was not defined under the KST Act and Rules. The court highlighted that, irrespective of marriage, a daughter continues to be a family member under the law. Additionally, the court emphasized that the service of notice by registered post to the known address of the dealer suffices for due service, and any alleged defects in service did not prejudice the rights of the assessee, as appeals were filed within the limitation period.

2. The second issue pertains to the eligibility for deduction of tax collected for the period 1995-96. The Tribunal observed that the dealer failed to provide relevant documents and proof to justify the claim for deductions. The burden of proof lies on the dealer under Section 6-A of the KST Act, and in the absence of supporting evidence, the claim for deductions could not be accepted. The court upheld the Tribunal's decision, emphasizing the necessity for dealers to substantiate claims with proper documentation.

3. The third issue involves the definition of family under Rule 53 of the KST Rules. The court reiterated that the married daughter remains a family member, irrespective of her marital status. The court emphasized the sufficiency of service by registered post to the known address of the dealer, dismissing the argument that service on the daughter was improper.

4. The fourth issue concerns the remand by the Tribunal. The Tribunal remanded the case to the Assessing Authority for recomputing the tax for specific assessment years. The court acknowledged the Tribunal's decision and upheld the remand for the limited purpose of recalculating the tax levied on the sale of Beer as per notification, emphasizing the procedural correctness of the remand order.

5. The fifth issue addresses the continuity of partnership after the death of a partner. The court noted that the partnership deed presented by the assessee indicated a reconstitution of the partnership, with the retiring partners mentioned. The court highlighted that the authorities assessing under the KST Act are not tasked with determining the legality of partnership deeds. The court emphasized that the retiring partners need not be considered necessary parties for assessment proceedings, as the assessment could proceed with any partner of the firm.

6. The sixth issue pertains to the inclusion of legal heirs in the case. The court highlighted that the partner had authorized his brother to handle correspondences with the assessing authority, indicating no objections raised regarding the partnership deed or service of notice. The court dismissed the argument that the partnership deed was invalid, emphasizing the partner's continued involvement in the business.

7. The seventh issue discusses the service of notice on legal heirs after the death of a partner. The court noted that the partner had authorized his brother to handle correspondences, indicating acceptance of the service. The court emphasized that objections regarding the partnership deed or service were not raised earlier, leading to the dismissal of the argument challenging the notice's validity.

In conclusion, the court dismissed the revision petitions, upholding the Tribunal's decisions on various issues related to service of notice, eligibility for deductions, partnership continuity, and inclusion of legal heirs in the assessment process.

← Previous Next →