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TMI Blog2019 (2) TMI 1089X X X X Extracts X X X X X X X X Extracts X X X X ..... as against the assessment and re-assessment made under the Kerala Tax on Luxuries Act, 1979, the latter invoking sub-section (5) of Section 6; which sub-section was brought in, after the subject assessment years, in August, 2006. The challenge to the assessment under the Act arose primarily on the ground of a constitutional invalidity. The learned Senior Counsel Sri. Joseph Kodianthara, fairly submits that the said ground does not survive as of now for reason of the same having been held against the assessees. This Court has found the provisions to be constitutionally valid. 2. The challenge is confined to the re-assessment carried out for the years 2000-01 to 2004-05. The first four years are dealt with in W.A No.28/2013 and the last year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave prospective effect. Then it is contended that, the assessee had disclosed the entire turnover and there was no reason for a reassessment. The Assessing Officer while issuing notice for assessment had proposed to include both the charges, ie, those charges levied on the residents and the outsiders. However, accepting the objections raised by the assessee on that count, the Assessing Officer while completing assessment, consciously decided to exclude the portion with relation to the charges levied on those persons who were not residing in the hotel. There could be no re-assessment carried out since the assessee was not at default and the Assessing Officer had taken a conscious decision to exclude a particular component; which removes it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. The Assessing Officer on completing the assessment had clearly committed an error by excluding the charges levied on outsiders. This would specifically come within the ambit of rectification of an error; is the argument advanced. As to the question of change of opinion, the learned Senior Government Pleader specifically relies on the Full Bench decision of this Court in OTC 10/2013 dated 30.11.2018 State of Kerala Vs. M/s. Chembra Peak Estate Limited. 7. On the question of the retrospective effect of the provision for reassessment, we need not labour much since the issue is squarely covered by the decision of the Hon'ble Supreme Court in S C Prashar (supra) and (1999) 2 SCC 77 [Addl. Commissioner (Legal) and another v.Jyoti Traders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itation having set in. The re-assessment carried out for that year stands set aside. 9. The next contention is with respect to the change of opinion, insofar as the Assessing Officer, on completion of assessment having clearly taken a conscious decision to exclude the charges levied on persons who were not residing in the hotel. We notice the Full Bench decision which considered in pari materia provisions of Section 41 of the Agricultural Income Tax Act, 1991. The Full Bench considered the issue on a reference made by this very Division Bench, finding conflict of opinion, in two Division Bench decisions of this Court; Deputy Commissioner of Sales Tax Vs. T.P.Elias [(1993) 90 STC 25] and Deputy Commissioner of Agricultural Income Tax Vs. T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it clear that an aspect which was noticed earlier, in the regular assessment under the Income Tax Act, and a decision taken in favour of the assessee; would preclude the same from being taken up for reason only of that earlier decision being erroneous. That would amount to a mere change of opinion; which is prohibited in re-assessment under the Income Tax Act. The re-assessment as contemplated under the Income Tax Act specifically provides for some extraneous factors which were not before the Assessing Officer at the time of the original assessment to enable a re-assessment. 11. Under the Income Tax Act on the facts of the present case, the re-assessment would not be possible since the Assessing Officer had looked at the total turnover in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isputes between the share holders which reached the Company Law Board(CLB), this Court, the Supreme Court and then the NCLT. The earlier management which was in office in the subject assessment years were put out of office and a new management has taken over by virtue of the judgment of this Court confirmed by the Hon'ble Supreme Court. After the change in management again a proceeding was initiated, before the NCLT wherein it was found that the AGM's carried on after 31.03.2003 were all illegal for reason of the CLB having prohibited convening of AGM's when the matters were pending there. NCLT has set aside the entire accounts of the assessee which were approved in the AGM's constituted in violation of the interim order of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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