9911796707
TMI Blog2003 (1) TMI 688X X X X Extracts X X X X X X X X Extracts X X X X ..... der, the assessee filed an appeal before the Assistant Commissioner, Agricultural Income-tax and Sales Tax, Palakkad, where he had raised a contention that the assessing authority erred in completing the assessment under section 17(3) of the Act in view of the provisions of the Act in section 17(4). Though the first appellate authority adverted to that contention, he did not deal with the same. He confirmed the assessment order. Hence, the assessee filed second appeal before the Sales Tax Appellate Tribunal, Additional Bench, Palakkad. The Tribunal, on a consideration of the provisions of section 17(4) of the Act and rule 18A(1A), 18(A)(1B) and 18A(2) of the Kerala General Sales Tax Rules, 1963, (for short the Rules ) and the factual situa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect of assessment years prior to April 1, 1992 which are pending completion of assessments and that if the provisions of section 17(4) of the Act are satisfied the assessing authority is bound to complete the assessment accordingly. In order to appreciate the rival contentions, we have to consider the relevant provisions of the Act. Section 17(4) of the Act, as substituted by Finance Act, 1992 with effect from April 1, 1992 and further substituted by the Finance Act, 1993, published in the Kerala Gazette No. 767 dated July 29, 1993, reads as follows: (4) Notwithstanding anything to the contrary contained in subsections (3) and (4A) the assessing authority shall accept the return for any year the assessment relating to which has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n or before the first day of May of the year succeeding to which it relates with proof of payment of the full amount of tax due or the tax collected by him whichever is higher, along with the documents specified under this rule for the claim of exemption. The tax due or collected, whichever is higher, during any quarter of the year shall be paid by such dealer on or before 15th of the succeeding month to the first three quarters, and for the fourth quarter, before the end of the quarter . . . (2) Where the assessing authority is satisfied that the method of assessment specified in sub-section (4) of section 17 is not applicable to any case, the assessing authority shall after affording an opportunity to the dealer of being heard, pass an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year shall be paid by such dealer on or before 15th of the succeeding month to the first three quarters, and for the fourth quarter, before the end of the quarter. Sub-rule (2) of rule 18A provides that where the assessing authority is satisfied that the method of assessment specified in sub-section (4) of section 17 is not applicable to any case, the assessing authority shall after affording an opportunity to the dealer of being heard, pass an order to that effect and serve it on the dealer and shall proceed to assess him under sub-rule (5) of rule 18. Though rule 18A(1A) of the Rules provides for filing the statement in form 21CC along with the return, in view of the provisions of section 17(4) of the Act which is applicable to pending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commencement of the provision of section 17(4), provided the conditions stipulated therein are satisfied. Under rule 18A(2) of the Rules, if the assessing authority is satisfied that the method of assessment specified in sub-section (4) of section 17 is not applicable to any case, he has a duty to pass an order to that effect, after affording an opportunity to the dealer of being heard, and serve it on the dealer and then only he can proceed to assess him under sub-rule (5) of rule 18. It is also to be noted that form No. 21CC is provided under rule 18A(1A) of the Rules. The requirements of the said form are (1) that the tax admitted in form No. 8 submitted along with the statement has been paid; and also that the assessee has fully paid t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly there is also a statutory obligation on the part of the assessing authority to give an opportunity of being heard to a dealer and serve an order to the effect on the dealer, if the provisions of section 17(4) is found not applicable in the case of a dealer before proceeding to assess the dealer under section 17(3) of the KGST Act. In the light of the fact that the appellant was not given an opportunity and served with an order, which are mandatory requirement contemplated under rule 18A(2) of the KGST Rules, we are of the opinion that the appellant was not given an effective opportunity of being heard before finalisation of the assessment under section 17(3). We, therefore, set aside the assessments and remand the case back to the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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