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TMI Blog2022 (2) TMI 1451X X X X Extracts X X X X X X X X Extracts X X X X ..... veral adjournments and sufficient indulgence is shown by the authority by granting adjournments. After having suffered the final order from the said authority, the petitioner has filed the first appeal. Said appeal is dismissed and it was questioned before the Tribunal. In these two statutory appeals, a plea of bias is not raised - the contention of bias is rejected. Non-consideration of additional documents produced before the appellate authority - HELD THAT:- The appellate authority in the impugned order dated 16.11.2012 has referred to the additional grounds raised on 04.09.2012. However, there is no reference to the additional documents produced in the appeal except listing them while narrating the contentions of the appellant. The appellate authority in the said order has not passed any orders on the additional documents. Since S. 62 (6-A) of the Act prohibits remand of the case. Thus if additional documents are produced before the appellate authority in appeal under S. 62 of the Act, the authority is bound to pass the orders on the prayer to consider additional documents under S. 62 (6-A) - If additional evidence is produced at the instance of the party, the appellate authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner is a public limited company engaged in extracting, processing and sale of granite blocks. The petitioner is having head office at Kolkatta and is having its factory/mine in Balakundi village, Ilkal, Bagalkot. 4. On 11.2.2011, the office premise of the petitioner at Ilkal was subjected to inspection. Six documents were reseized on that day. These six documents form the basis for reassessment orders. The petitioner-company in the first instance took a stand that the seized documents are not the documents of the petitioner company, on the premise that the room of the factory manager from where the documents were seized is not the premises of the petitioner company. 5. Subsequently, the Assistant Commissioner of Commercial tax passed an order of reassessment after issuing show-cause notice. Petitioner challenged the reassessment order before the appellate authority. The challenge failed. Petitioner approached the Appellate Tribunal. Tribunal did not entertain the second appeal and dismissed the same. Hence the present revision petition under S. 65 of the Karnataka Value Added Tax 2003. 6. This Court has admitted the revision petition in terms of order dated 05.02.2018 and framed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record has rightly dismissed the appeal. (c) Section 39 (1) of the Act, confers power on the Commissioner to authorize a competent officer to pass an order of reassessment. Since the statute itself confers powers on the commissioner to appoint any prescribed officer to pass an order of reassessment, the authority who seized the materials on inspection is better suited to pass an order of reassessment, as the said officer will be having first-hand information relating to the suppression of tax. 10. We have considered the contentions raised at the bar and perused the judgments cited. 11. As far as contention relating to the bias raised by the petitioner is concerned it is to be noticed that Section 39 (1) of the Act, confers power on the prescribed authority to pass an order of reassessment. Sub-Section 2 of Section 24 of the Act defines the term prescribed authority. As per Sub-Section 2 of Section 24 of the Act, prescribed authority means an officer of the Commercial Taxes Department, authorized by the Government or the Commissioner to perform such functions as may be assigned to him. There is no dispute that the Commissioner has authorized the jurisdictional Assistant Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of any proceeding under this Act, any prescribed authority ceases to exercise jurisdiction and is succeeded by another who may exercise that jurisdiction, the authority or officer so succeeding may continue the proceeding from the stage at which the proceeding was left by his predecessor. (4) The person concerned may demand that before the proceeding under sub-section (3) is so continued, the previous proceeding or any part thereof be reopened or that before any order is passed against him, he be reheard. 13. In terms of Section 61 (1) the Assistant Commissioner and other officers specified in the provision shall perform functions in respect of such area or such dealers or classes of dealers or clauses of cases as the Commissioner may direct. The word case referred to in sub-Section (1) refers to all proceedings under the Act in respect of any year which may be pending on the date of such order or direction or which may not be completed on or before such date and includes all proceedings under this Act which may be commenced after the date of such order or direction in respect of any year. The provision referred above does not put any embargo on the Commissioner while r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication dated 17.6.2011 is rejected. Nevertheless, one week time is granted to produce the documents. And same was communicated through speed post which is delivered to the petitioner on 1.7.2011. However, there was no response from the petitioner. Under the circumstances, the Assistant Commissioner of Commercial Taxes passed the reassessment order on 14.7.2011. Looking into the nature of the case and the time granted by the authority to the petitioner, to produce the documents which the petitioner wanted to produce, this Court is of the opinion that the alleged bias is not established. It is a settled position of law that bias if alleged must be proved by definite evidence. Mere general statements will not be sufficient to accept the plea of bias. There must be cogent evidence available on record to conclude as to whether in fact or a mala-fide move that resulted in miscarriage of justice, as held by the Hon ble Apex Court, in the case of State of Panjab Vs V.K.Khanna and others (2001) 2 SCC 330. In the matter of G.K. Naik Vs, Goa University and others (2002) 2 SCC 712, the apex court has held that bias may be defined as partiality or preference. It is true that, any person or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents in support of their claim, the appellate authority was bound to consider the additional documents in a way, it is required to be considered by the assessing authority. Referring to sub-Section 6-A of Section 62 of the Act, it is urged that there is no scope for remand of the matter to consider the additional documents. Thus appellate authority is bound to consider the additional documents is the submission. 18. Sub-Section (6-A) (i) of Section 62 of the Act reads as under; In disposing of an appeal before it, the appellate authority shall not remand the case to make a fresh assessment or fresh order, but shall proceed to dispose of the appeal on its merit, as it deems fit, if necessary by taking additional evidence. 19. The expression if necessary by taking additional evidence found in sub-Section (6-A) (i) of Section 62 of the Act makes it abundantly clear that the appellate authority in its discretion may allow the production of additional documents. 20. The expression In disposing of an appeal before it, the appellate authority shall not remand apart from having a negative connotation prohibiting remand, when read with the power to take additional evidence, unravels t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority would urge that there is enough consideration by the appellate authority on the additional documents produced by the present petitioner. However, the appellate authority s order does not give the impression that the additional documents received due consideration by the appellate authority. Under these circumstances, this Court is of the opinion that the appellate authority erred in exercising the jurisdiction vested in it under Section 62 more particularly S. 62 (6-A ) of the Act 2003. 23. Learned counsel for the petitioner inviting the attention of this Court to the orders passed by the appellate Tribunal would take us to the finding of the appellate Tribunal wherein the Tribunal has proceeded to observe that the appellant has failed to produce the seized exhibits before the Tribunal. It is to be noticed that the documents are produced before the appellate authority was before the Tribunal and the same is not considered by the Tribunal. Under these circumstances, this Court has no other option but to set aside the order of the first appellate authority as well as the Tribunal accordingly. The substantial questions of law framed above are partly answered in favour of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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