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TMI Blog2010 (3) TMI 1046X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 40,94,743 together with penalty at Rs. 8,18,148 and interest of Rs. 22,52,108 in all Rs. 71,64,999 failing which the said amount would be recovered under section 42(9) of the Karnataka Value Added Tax Act, 2003 (for short, "the Act"). Annexure E is another demand notice issued under the same provisions calling upon the petitioners to pay Rs. 44,40,994 inclusive of penalty and interest. 2. The case of the petitioner is that, it is a private company engaged in manufacture of components for earthmoving equipments. The petitioner purchases raw materials, i.e., iron in Belur village, Dharwad District, then it is processed at the factory of the petitioner and sends the same to its own factory at Goa for further processing. After manufacturing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 46 of the Rules made thereunder. Reassessment could be bestowed only with the authorisation from the Commissioner. Thus, the respondent lacks the jurisdiction of authority under the law to make reassessment of the tax. He further submitted that, the object behind granting authorisation is to prevent the element of bias and submitted that, when the Commissioner has not authorised the respondent, the reassessment done by the respondent is per se is in violation of the provisions of section 39 read with rule 46 of the Rules. He further submitted that the petitioners are the assessees and they have paid the tax in consonance with the assessment orders. It is on the allegation that the petitioners have evaded the tax, reassessment is done and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity cannot be supported in law in the instant case for the reason that the officer was not competent to pass the same." 5. He further referred to the provisions of section 38(7) of the Act and submitted that the provisions of section 39(1) are identical and submitted that the whole exercise of reassessment by the respondent is one without authority of law. 6. On the contrary, Sri Dinesh Rao, learned Government Advocate for the respondent, submitted that, reassessment has been done strictly in consonance with section 39 of the Act read with rule 46 of the Rules and a person who has re-assessed the tax is an authorised officer. In support of his contention, he further relied on exhibit R1 a print copy of the e-mail sent by the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) shall issue a notice of reassessment to the dealer demanding that the tax shall be paid within ten days of the date of service of the notice after giving the dealer the opportunity of showing cause against such reassessment in writing. (2) Where after making a reassessment under this section, any further evidence comes to the notice of the prescribed authority, it may make any further reassessments in addition to such earlier reassessment." 9. A reading of the provisions of section 39(1) makes clear that it confers power for reassessment and further reassessment and to levy tax, penalty and interest thereon. However, reassessment could be done only by the prescribed authority. The pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der rule 46 to authorise an officer, the said authorisation cannot be by way of oral or telephonic, but must be by an expressed order. While exercising the powers under the tax statutes, the authority must act in conformity with the provisions of the Act and the Rules made thereunder. 13. Under section 38(7) of the Act, the Commissioner has been conferred with power to authorise an authority to assess the tax. After reading of provision of section 38(7) read with section 39(1) further read with rule 46 and in the light of the decision of the Division Bench, I am of the clear opinion that there is no authorisation as required under section 39(1) of the Act read with rule 46 of the Rules. The e-mail print out produced by the State at annexur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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