9911796707
TMI Blog2008 (8) TMI 822X X X X Extracts X X X X X X X X Extracts X X X X ..... for the petitioner would enlist in support of her contention that it has transformed into a right in favour of the petitioner on the ground of the assessments being barred. The petitioner is the eldest son and one of the legal heirs of one Sri Mytheen Kunju Sahib. Late Mytheen Kunju Sahib was an assessee under the Kerala General Sales Tax Act, 1963. The question relates to the assessment years 1974-75 and 1980-81. Late Mytheen Kunju Sahib passed away on March 24, 1998. The legal heirs of Sri Mytheen Kunju Sahib received a notice dated January 24, 2003 calling upon the legal heirs, including the petitioner to produce the books of account before the first respondent. The petitioner has submitted exhibit P1 letter seeking details as to why the books of account were being called for. They were informed that the books of account of the deceased father were called for. Exhibit P2 reply was given requesting for more details. Inquiries were made and the petitioner has found that there were assessments made against their late father which were carried in appeal and it resulted in orders of remand being passed for re-doing the assessments. Exhibits P3 and P4 are the appellate orders of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the 1st day of April, 1993 shall be completed on or before the September 30, 1998. It is therefore a clear case where the assessments should have been completed, even treating the assessments as pending as on April 1, 1993, on or before September 30, 1998, it is contended. In this case the notice calling upon the petitioner and other legal heirs to produce the books of account were issued in the year 2003. The impugned assessment orders were passed on September 16, 2003. It is further contended that by no stretch of imagination it could be contended that the assessments were completed within the period fixed. Learned Government Pleader however submitted that the question is covered in favour of the respondents and by virtue of the decision of the Full Bench in Geo Sea Foods' case [2006] 144 STC 553. He further submitted that having regard to the clear terms of section 17A, the contention of the petitioner is without any basis. In order to appreciate the contentions of the parties, to resolve the lis, it is necessary to refer to section 17A of the Act, which was inserted by Act 20 of 2000 with effect from April 1, 1993. Section 17A reads as follows: 17A. Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusion of the same should be done within a reasonable time. Apparently it was in this context amendment was introduced. In the above case the court took the view that the assessment has to be completed within a reasonable time and if the assessment was not so done, the assessment could not be legally completed. The judgment in Geo Seafoods' case [2000] 119 STC 236 (Ker) was delivered on November 10, 1999. Section 17A as already noticed was inserted by Act 20 of 2000 but with effect from April 1, 1993. Apparently the reason for the insertion was to deal with the situation created by the judgment of this court in Geo Seafoods' case [2000] 119 STC 236. In other words, the decision in Geo Seafoods' case [2000] 119 STC 236 having taken the view apparently following the the decision in Iswara Bhat's case [1993] 200 ITR 238 (Ker); [1992] 1 KLT 568 that assessment has to be completed within a reasonable period of time, the effect was that the amendment to section 17 by inserting sub-sections (6) to (9) was robbed of their efficacy by throwing a shadow of doubt over the power of the assessing authority to make orders of assessment in respect of matters, which could be sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be pending and thus it became unnecessary for the said Bench to go into the challenge on the vires of second proviso to section 17(6). Since section 17A has been introduced making it clear that the assessments as on April 1, 1993 shall be deemed to be pending notwithstanding anything contained in the statute or in any judgment or decree or order of any court, Tribunal or other authority, it has become unnecessary for us also to consider the challenge to the second proviso to section 17(6), since the pleadings have not been amended. It is also stated in paragraph 7 as follows: ...The language used in section 17A clearly means that notwithstanding anything contained in section 17 or section 18 or in any judgment, decree or order of any court or Tribunal or other authority, assessments for any period prior to April 1, 1993 shall be deemed to be pending and the same could be completed within the permitted time... It is crucial to notice the wording of section 17A. Section 17 after the amendment in 1993 and thereafter provides for a time-limit for the completion of assessment in various situations. When the matter reaches the assessing authority, in the form of remand by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed with the vice of bar of limitation. This is for the reason that the proviso to sub-section (8) clearly enables the assessing authority to complete the assessments or reassessments pending as on the April 1, 1993 on or before September 30, 1998. A question may arise as to what was the need for the Legislature to refer to section 17 also in the non obstante clause contained in section 17A. This question is also to be answered in view of the employment of the words assessments pending or reassessments pending in section 17 as contained in the original second proviso to sub-section (6) which instantly was the subject-matter in Geo Seafoods case [2000] 119 STC 236 (Ker); [2000] 8 KTR 21 as also the proviso to sub-section (8) of section 17. As already noticed, the Legislature intended notwithstanding the judgments and notwithstanding the law declared in the case and also the decision in the first Geo Seafoods case [2000] 119 STC 236 (Ker); [2000] 8 KTR 21, the word pending was to bear the meaning which was embedded in section 17A. Thus the true purport of section 17A is to treat the assessments or reassessments as pending completion in respect of any period prior to April 1, 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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