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TMI Blog2023 (8) TMI 893X X X X Extracts X X X X X X X X Extracts X X X X ..... The petitioner has produced material to show that what was brought into the State was one windmill in a knocked down condition in three separate vehicles and also to show that the said windmill is still operational and that electrical energy is being generated and supplied to the KSEB. The further contention appears to be that electrical energy being goods included in the 1st Schedule, for which, no tax is payable, the sale of electrical energy also ought to have been disclosed by the petitioner, who is a registered dealer under the KVAT Act, in his returns as turnover which has not been done in the instant case. The remaining question is with regard to the sale, if any, of the windmill as such. From the materials produced by the petitioner, especially Exts. P15, P22 and P24, it is clear that what has been brought into the State of Kerala was one windmill in knocked down condition in three separate vehicles as part of the same bill or invoice. The KSEB is on record stating that one windmill is still functional at Ramakkalmedu and that electrical energy is being generated and supplied to the KSEB from the same. Thus, Ext.P20 order, which does not satisfy the ingredients of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d devices which runs on wind mills . Hence, a best judgment assessment was proposed reckoning a total and taxable turnover of Rs. 12,88,39,410/- and tax at 4% of the sale was proposed to be assessed. The petitioner was required to submit their reply within seven days and to avail the opportunity of personal hearing on 19.3.2014. It is contended that Ext. P19 was served on the petitioner by registered post on 4.3.2014 and though attempts were made to file reply before the time granted, he could not do so. The proposals were finalized ex parte and Ext. P20 proceedings were issued, which are under challenge. 3. It is submitted that since the assessment was made without considering the relevant aspects and was on clear error of fact and law, a rectification application was filed before the 1st respondent under Section 66 of the Act as Ext. P21. The petitioner produced Ext. P15 letter of the KSEB with photographs of the windmill, balance sheets for the assessment years 2007- 08 to 2012- 13 as well as the authenticated copies of the part invoices for despatch under the cover of which the supplier had brought the windmill into the State which are produced as Ext. P22 to P24. However, E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccounts to prove the correctness of the return within the time as provided under Sections 21, 22 and 24 are to be exhausted before proceeding to a best judgment assessment under Section 25 of the KVAT Act. It was held relying on the decision of a Division Bench of this Court in Suzion Infrastructure Service Limited v. Commercial Tax Officer (W.C), Ernakulam [2010 (3) KHC 299] that a reasonable opportunity is liable to be granted to the dealer to enable him to appear before the authority concerned and show cause against the proposal to complete the assessment on best judgment basis. It is further contended that since there is no real contention that there was any escaped assessment to tax in the year or that the tax has been under assessed or has been assessed at a lower rate with regard to sale of electrical energy by the petitioner, there could be no proceedings under Section 25(1). With regard to the sale of the windmill, it is contended that the said contention has been found to be totally erroneous by the documents produced by the petitioner and that therefore, the assessment is liable to be set aside. 6. A counter affidavit has been placed on record by the 1st responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factors is no consideration, because the document prescribed to be accompanied with the consignment vide Section 46 is either invoice or delivery note or certificate of ownership only. There is no reason to believe that the part bills (invoices) are one and the same. It is, therefore, contended that it was on the assumption that the petitioner had brought in windmill and its parts using invoices to the State of Kerala but had not communicated the disposal of the goods purchased through documentary evidences that Ext. P20 assessment order was passed. 8. The 2nd respondent has also placed a counter affidavit on record stating that the Department of Revenue is not concerned with the nature of accrual of arrears which leads to Revenue Recovery proceedings. It is stated that once the amount is certified to be recoverable under the provisions of the Kerala Revenue Recovery Act, the Department is duty bound to realize it unless an intimidation of withdrawal is given by the Authority. It is also stated that since the requisitioning authority has furnished the details, no further enquiry is required before certifying the amount recoverable under the Act and the only power of the Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax in any year or return period or has been underassessed or has been assessed at a rate lower than the rate at which it is assessable or any deduction has been wrongly made therefrom, or where any input tax or special rebate credit has been wrongly availed of, the Assessing Authority may, at any time within five years from the last date of the year to which the return relates, proceed to determine, to the best of its judgment, the turnover which has escaped assessment to tax or has been underassessed or has been assessed at a rate lower than the rate at which it is assessable or the deduction in respect of which has been wrongly made or input tax or special rebate credit that has been wrongly availed of and assess the tax payable on such turnover or disallow the input tax or special rebate credit wrongly availed of, after issuing a notice on the dealer and after making such enquiry as it may consider necessary : Provided that before making an assessment under this subsection the dealer shall be given a reasonable opportunity of being heard. Therefore, even if the contention of the revenue that electrical energy is included in the 1st Schedule is accepted, there woul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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