9911796707
TMI Blog2010 (6) TMI 677X X X X Extracts X X X X X X X X Extracts X X X X ..... the point of dispute. The petitioner is challenging the correctness and sustainability of exhibit P3 order passed by the respondent under section 25(1) of the KVAT Act, whereby huge liability is stated as mulcted on the shoulders of the petitioner ; without giving an opportunity of hearing which is contrary to the statutory prescription under section 25(1) of the KVAT Act and hence is under challenge in this writ petition. The sequence of events shows that the petitioner, who is engaged in executing works contract, has been submitting the returns as prescribed under the relevant provisions of law. Subsequently, on verification of the returns in respect of the assessment year 2007-08, the respondent observed some discrepancies and accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefrom, or where any (input tax or special rebate) credit has been wrongly availed of, the assessing authority may, at any time within five years from the last date of the year to which the return relates, proceed to determine, to the best of its judgment, the turnover which has escaped assessment to tax or has been under-assessed or has been assessed at a rate lower than the rate at which it is assessable or the deduction in respect of which has been wrongly made or (input tax or special rebate) credit that has been wrongly availed of and assess the tax payable on such turnover or disallow the (input tax or special rebate) credit wrongly availed of, after issuing a notice on the dealer and after making such enquiry as it may consider nec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m para 7 of the counter-affidavit that the petitioner filed a letter dated February 3, 2010 seeking for an adjournment till February 17, 2010 and it was accordingly, that the objection dated February 10, 2010 was filed before the respondent on February 17, 2010 (referred to as the second item in exhibit P3). It is contended from the part of the respondent that, till date, the assessee had not turned up before the respondent for personal hearing, despite the opportunity given as mentioned in exhibit P1, which hence is sought to be sustained. Going by the admitted facts and figures or rather the undisputed aspect projected from the pleadings on record, it is crystal-clear that, after issuance of exhibit P1 notice, the petitioner was not actu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to enable the assessing authority to proceed to determine the tax to the best of its judgment. On receipt of the notice, the assessee is at liberty to explain the position and if the explanation is satisfactory, the assessing authority may not proceed further and the matter may be closed. If the explanation is not satisfactory, then the question comes, as to the necessity to pass an assessment under sub-section (1) of section 25. It is at this juncture, the statute mandates that the dealer shall be given a reasonable opportunity of being heard before making an assessment under the above sub-section. This being the position, the primary question to be considered is whether the explanation offered in response to the notice is satisfactory or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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