9911796707
TMI Blog2006 (1) TMI 587X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 22A of the Act setting aside the order dated September 11, 2003 made in Appeal Nos. KST.AP. 37, 38 and 39/2003-04 by the Deputy Commissioner of Commercial Taxes (Appeal and Audit) (hereinafter referred to as, the appellate authority ). The facts in brief are as hereunder: The Commercial Tax Officer (Intelligence)-X, South Zone, on the basis of information gathered through intelligence source and from the circle office that the appellant (hereinafter referred to as, the assessee ) has misclassified certain PVC goods and paid taxes at lower rates, inspected the business premises of the assessee on March 7, 2003 and collected certain incriminating information against the assessee. Pursuant to the said information collect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 of the Act is erroneous in law inasmuch as it was for the assessing authority in exercise of its power under section 12A of the Act either to reopen or to reassess the earlier order of assessment in its discretion and therefore, he submits that the direction given in the impugned order that the assessing authority should pass an order under section 12A or 12 as required under section 28(7) of the Act is wholly illegal and without the authority of law. Secondly, he submitted that since the observations made by the revisional authority seriously affect the rights of the appellant and the said observations are likely to influence the mind of the assessing authority, the impugned orders of reassessment made by the assessing authority are l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en by the revisional authority to the assessing authority to make an order of reassessment in terms of sub-section (7) of section 28 of the Act, is erroneous in law. Sub-section (3) of section 28 of the Act confers power on such officer, if he suspects that any dealer is attempting to evade the payment of any tax, fee or other amount due from him under this Act, he may for reasons to be recorded in writing, seize such accounts, registers, records, etc., belonging to a dealer, etc. Sub-section (6) of section 28 confers on him the power of examining the accounts, registers, records or other documents seized under sub-section (3) to make an order of provisional assessment. If conditions set out in the said sections are satisfied notwithstandin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e basis of such materials as are before him. Sub-section (7) of section 28 of the Act consists of two parts. The first part requires the officer concerned to communicate the provisional order of assessment made by him in terms of sub-section (6) of section 28 to the assessing authority. The second part of the said sub-section requires the assessing authority to complete the order of assessment after looking into such provisional order of assessment and all other documents and materials furnished by such an officer and impose the tax or penalty, as the case may be, depending upon the facts and circumstances of each case. From the scheme of section 28 of the Act, it is clear that the object of the said section is to prevent evasion of tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew, the power conferred on the empowered officer under section 28 will be totally frustrated. The documents/materials collected by an officer who has made provisional order of assessment under sub-section (6) of section 28 of the Act, in our view, are required to be considered by the assessing authority when he proceeds to complete the assessment or reassessment, as the case may be. Sub-section (7) of section 28 of the Act not only mandates the officer who has made provisional order of assessment under sub-section (6) of section 28 to communicate such provisional order, but it also requires him to send such documents as may be necessary to enable the assessing authority to complete the assessment or reassessment, as the case may be. While i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der should be set aside on the ground that the said observation would seriously prejudice the interest of the assessee and takes away the discretion conferred on the assessing authority? In our view, it is not necessary to set aside the observations made in the course of the order impugned and the directions given. We are of the view that the ends of justice would be met if an observation is made clarifying that assessing authority, while reconsidering the matter, should not in any manner be influenced by the observations made by the revisional authority in the course of the order and it is required to take an independent decision in the matter in exercise of the power conferred on it under section 12A or under section 12 of the Act. Accord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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