9911796707
TMI Blog2015 (4) TMI 1173X X X X Extracts X X X X X X X X Extracts X X X X ..... ARE GOWDA, ADVOCATE) RESPONDENTS (BY SRI. T.K. VEDAMURTHY, HCGP) ORDER Petitioner is assailing the correctness and legality of the re-assessment order and demand notice dated 10.02.2 015 Annexures-E and E-1 respectively passed by the first respondent for the assessment year 2011-12. 2. Deputy Commissioner of Commercial Taxes, (Audit)- 3.3, DVO-3 passed an order on 09.01.2014 Annexure-A whereunder certain excess input taxes is allowed to be carried forward. A notice under section 39(2) under the Karnataka Value Added Tax Act, 2003 (for short `Act ) for reassessment came to be issued on 25.11.2014 Annexure-B. Initially petitioner filed objections on 08.12.2014 and thereafter additional objections came to be filed on 19.01.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the absence of valid authorization the re- assessment order would be one without jurisdiction; (v) Deputy Commissioner of Commercial Taxes, (Audit)-3.4 has not applied his mind to re-assess the petitioner under section 39(2) since the very notice dated 25.11.2014 Annexure-B would indicate that with an intention to re-examine the turnover and tax liabilities, a notice came to be issued calling for production of registers which is an indicator to the fact that there was no application of mind at the time of issuance of notice for reassessment. Hence, he contends order of re-assessment is bad in law. In support of his submission he has relied upon following Judgments: 1. (2010) 69 KLJ 290 Model Bucket and Attachments Priva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s an order passed under section 38(1) of the Act. It is clearly mentioned therein that by virtue of assignment No.19026573 assessee was called upon to produce the books of accounts for verification which related to the period 2011-12 an d in response to the same, the authorized representative of petitioner-assessee appeared and produced the books of accounts and on scrutiny of the same, an order came to be passed on 09.01.2014, which is apparently an order passed under section 39(1) and it cannot be construed as a n order being passed under section 38(1) as contended by Sri. M.N. Shankare Gowda, learned counsel appearing f or petitioner, inasmuch as an order under section 38(1) is a deemed assessment order based on the returns filed by asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Audit)-3.4 is based on the assignment made by the Commissioner in exercise of his power under Rule 46 or not had summoned the original records and same has been made available. A perusal of original records would clearly indicate that by order dated 19.11.2014 passed by Commissioner he has not merely withdrawn the earlier assignment mad e to Deputy Commissioner of Commercial Taxes, (Audit)-3. 3 but has also assigned the same to Deputy Commissioner of Commercial Taxes, (Audit)-3.4 for determination of tax payable and to frame reassessment order as could be seen from the order dated 19.11.2014 and for immediate reference operative portion of the said order is extracted he rein below: 8. At this juncture itself it would be appropria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of Section 39(1) it 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 prescribed authority referred to under Section 39(1) of the Act means a authority mentioned under the Rules. Under Rule 46 of the Rules requires the Commissioner to authorize any officer to make reassessment under Section 39. By reading of both the provisions, it is clear that the reassessment must be by the authorized person and authorized person is one who has been authorized by the Commissioner for Commercial Tax. When law requires that the Commissioner shall authorize the officer, the authorization must be an expres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree officer namely Deputy Commissioner of Commercial Taxes, (Audit)-3.4 not only to determine tax liability but also authorizing him to frame re- assessment proceedings. Hence, assignment in quest ion is held to be valid as it is in consonance with the Ac t and Rules made thereunder. Hence, I do not find any merit in these writ petitions, accordingly writ petitions stand rejected. No costs. It is needless to state that petitioner if so advised, would be entitled to file a statutory appeal against order of re- assessment dated 10.02.2015 Annexure-E within three weeks from today. In the event of such appeal being file d appellate authority shall not insist for application for condonation of delay being filed and it shall examine such appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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