9911796707
TMI Blog2019 (8) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Ext.R2(a) calls upon the petitioner to produce books of accounts. The assessee, in fact, did not produce the record. Therefore, the consequence of omission to produce books of accounts, by referring to the emphatic conclusion, it can be concluded that Ext.P6 assessment order is restored so far as assessment year 2008-09 is concerned. The Tribunal has restored Ext.P6 order and it is not within the competence of the second respondent to ignore Ext.P6 order and independently pass order of re-assessment in Ext.P13. In the considered view of this Court by giving the contextual meaning to the word 'restore' or 'restoration' used in Ext.P7 order, the order in Ext.P13 is illegal and beyond the jurisdiction of second respondent. The respondents do not contend that independent of Exts.P2 and P4, the respondents could have initiated proceedings for re-assessment through Ext.R2(a) at this length of time as such initiation is beyond the period of limitation. Ext.P13 order, for the above reasons, is set aside as illegal and beyond the jurisdiction of second respondent. As per the scheme under the Act, in the three tier system provided for determination, appeal, appeal to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unaccounted purchase notified in the notice read as 3rd. 04/08 ₹ 10,92,306.00 05/08 ₹ 15,02,522.00 06/08 ₹ 19,96,117.00 07/08 ₹ 24,99,587.00 08/08 ₹ 29,47,306.00 09/08 ₹ 16,79,856.00 10/08 ₹ 11,54,028.00 11/08 ₹ 7,57,481.00 12/08 ₹ 10,06,600.00 01/09 ₹ 1,56,488.00 02/09 ₹ 6,62,632.00 03/09 ₹ 4,66,089.00 Total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order in Ext.P6 is vitiated by violation of principles of natural justice and recorded the following findings: 4. Heard both sides. The learned representative for the appellant argued that the assessing authority is wrong in stating that the appellant did not account the purchase of ₹ 1,11,61,588/-. The representative argued that the appellant had requested to the assessing authority to give the details of unaccounted purchase amounting to ₹ 1,11,61,588/- and the reason for dis-allowance of export sales which were not given to the appellant by the assessing authority. The representative submitted that the appellant was not given an opportunity to prove the unaccounted purchase and export sales inspite of the request made to the assessing authority. The assessing authority has not considered the request of the appellant and there is violation of natural justice in this case. Therefore, we are of the view that the matter requires to be considered again by the assessing authority. We, therefore, set aside the orders of the authorities below and remit the case back to the assessing authority for fresh disposal. The appellant is directed to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the books of accounts registers, records/ or other documents, as required, a penalty upto ₹ 10,000/- (Rupees Ten thousand only) may be imposed upon you under Section 67(1) of the KVAT Act, 2003. Given under my hand and seal this 17th day of October 2017. Later on the second respondent has made the order in Ext.P13 and determined the total tax liability as ₹ 1,11,92,236/- (Rupees One crore Eleven lakh Ninety Two thousand Two hundred and Thirty Six only). Hence the writ petition. 4. Adv Sukumar Nainan Oommen contends that Ext.P13 order of assessment is completely illegal and without jurisdiction. According to him, the respondents during the pendency of proceedings either before the Deputy Commissioner or before the Appellate Tribunal did not contend that a few more details or omissions are noted in the return filed by petitioner for the assessment year 2008-09 warranting re-determination of turnover of the petitioner. On the other hand, the Department tried to sustain the order in Ext.P6 and the Tribunal, upon noticing that there is an illegality in the procedure followed i.e., not affording fair opportunity to petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notices issued in Exts.P2 and P4 but Ext.R2 notice is not issued proposing a fresh re-assessment. Therefore, the order in Ext.P13 is in continuation of the order passed by the Tribunal. Answering the argument that the notice in Ext.R2(a) and the order in Ext.P13, if are taken independently they are beyond the period of limitation, she states that the respondents will have to either stand or fail only by referring to the earlier notices issued in this behalf, but if R2(a) is taken as the starting point for re-assessment, the reassessment is certainly beyond the period of limitation. 6. I have taken note of rival submissions advanced by the counsel appearing for the parties. Now the short point for consideration is whether Ext.P13 order of assessment is in line with the order of Appellate Tribunal in Ext.P7 and amounts to reviving or re-opening Ext.P6 which has otherwise become final by the declaration of the Appellate Tribunal. 7. The case of petitioner is that Ext.P7 dealt with the argument of petitioner made against denial of opportunity and the objection raised in this behalf was accepted by the Appellate Tribunal. Thereby the assessment order in E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initiated proceedings for re-assessment through Ext.R2(a) at this length of time as such initiation is beyond the period of limitation. Ext.P13 order, for the above reasons, is set aside as illegal and beyond the jurisdiction of second respondent. 9. It is not the case of Department at any point of time during the pendency of proceedings before the Deputy Commissioner (Appeals) or before the Tribunal that in the reassessment notices issued in Exts.P2 and P4 a few omissions are noticed and the Department intends to revise its notices and proceed afresh against the petitioner. If that is the case, the Department would have invited an order for restoring the file to the second respondent but not on the reasons recorded in Ext.P7. 10. As per the scheme under the Act, in the three tier system provided for determination, appeal, appeal to Tribunal etc, the final decision taken in the hierarchy of forums is binding on the officers and the assessee. In the case on hand, the Tribunal has taken the final decision. Therefore, that decision alone is binding between the parties for the assessment year 2008-09. The writ petition ordered as indicate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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