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Deshanur Oil Mills and ors. Vs. Commercial Tax Officer, Circle Iii, Belgaum - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 3594 of 1976 connected with Writ Petitions Nos. 3596 and 3598 of 1976
Judge
Reported in1981(2)KarLJ52; [1982]49STC356(Kar)
ActsKarnataka Sales Tax Act - Sections 25-A
AppellantDeshanur Oil Mills and ors.
RespondentCommercial Tax Officer, Circle Iii, Belgaum
Appellant AdvocateK. Srinivasan, Adv.
Respondent AdvocateM.R. Vanaja, High Court Government Pleader
Excerpt:
.....to consider the application for grant of occupancy rights to the petitioner as he was holding the land as a tenant prior to and as on 1.3.1974. - they purchase groundnuts and decorticate and then sell the nuts without shells both in the state of karnataka as well as outside. srinivasan, the learned counsel appearing for the petitioners in all the petitions, has pointed out that whatever be the defence taken by the petitioners in response to the notice issued under section 12-a of the act, the impugned notice at exhibit b calling upon them to show cause why the assessment orders should not be rectified would clearly be impermissible inasmuch as the same was beyond five years from the date of the respective assessment order, i. this is clearly impermissible. in the notices issued to the..........to the court that the matter rested there and on 26th march, 1976, the commercial tax officer issued notice under section 25-a of the act to rectify the assessment order in relation to each of the petitioners for the assessment year 1965-65. section 25-a of the act is as follows : '25-a. rectification of mistakes. - (1) with a view to rectifying any mistake apparent from the record, the assessing authority, appellate authority or revising authority, may, at any time, within five years from the date of an order passed by it, amend such order : provided that an amendment which has the effect of enhancing an assessment or otherwise increasing the liability of the assessee shall not be made unless the assessing authority, appellate authority or revising authority, as the case may be,.....
Judgment:
ORDER

Chandrakantaraj URS, J.

1. These three petitions are disposed of by this common order as a common question of law has been raised in all the petitions. Though the assesses-petitioners are different their common grievance is that the impugned notice at exhibit B in each of the petitions was illegal and without jurisdiction inasmuch as the same was issued beyond the period of limitation prescribed under section 25-A of the Karnataka Sales Tax Act (hereinafter referred to as 'the Act'). The said exhibit B is dated 26th March, 1976.

2. All the petitioners are groundnut oil manufacturers. They purchase groundnuts and decorticate and then sell the nuts without shells both in the State of Karnataka as well as outside. Each of the petitioners submitted his return for the assessment year 1964-65 and the respondent-Commercial Tax Officer (hereinafter referred to as 'the Commercial Tax Officer') at the relevant time assessed them giving exemption to the inter-State sales turnover of the petitioners in respect of groundnuts. The assessment orders in respect of all the three petitioners were completed and the orders passed in the year 1967 itself though on different dates. The exemption was given in the light of the decision of the Supreme Court in Yaddalam's case : [1965]2SCR129 . After Yaddalam's case : [1965]2SCR129 was rendered, the Central Sales Tax Act came to be amended retrospectively subjecting to tax among other things inter-State sale of groundnut also. However, the Amendment Act of 1969 provided for exemption of liability to pay the tax by the concerned dealer if he had not collected the tax at the time when the sale transaction took place.

3. It is unnecessary to go into that aspect of the case in these writ petitions, though it appears from the records produced by the learned Government Pleader that all the assessees sought protection of section 10 of the 1969 Amendment Act.

4. All of them received a notice dated 23rd September, 1969, purporting to have been issued under section 12-A of the Act to bring to tax the inter-State sales turnover in groundnut of the petitioners for the assessment year 1964-65 as the same had escaped assessment for the said year.

5. In other words, what happened after the Central Sales Tax Act was amended by the Amendment Act of 1969 was that the Commercial Tax Officer presumably proceeded to reassess the petitioners forming the opinion that granting them exemption for the assessment year amounted to escapement of liability as the turnover was retrospectively brought to tax. As already mentioned the petitioners took the defence that the Amendment Act of 1969 was constitutionally invalid and in any event they were not liable to pay tax having regard to section 10 of the Amendment Act. They also took the stand that granting of exemption would not amount to the turnover escaping assessment. It is seen from the records made available to the court that the matter rested there and on 26th March, 1976, the Commercial Tax Officer issued notice under section 25-A of the Act to rectify the assessment order in relation to each of the petitioners for the assessment year 1965-65. Section 25-A of the Act is as follows :

'25-A. Rectification of mistakes. - (1) With a view to rectifying any mistake apparent from the record, the assessing authority, appellate authority or revising authority, may, at any time, within five years from the date of an order passed by it, amend such order : Provided that an amendment which has the effect of enhancing an assessment or otherwise increasing the liability of the assessee shall not be made unless the assessing authority, appellate authority or revising authority, as the case may be, has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard. (2) Where an order has been considered and decided in any proceedings by way of appeal or revision relating to an order referred to an sub-section (1), the authority passing such order may, notwithstanding anything contained in any law for the time being in force, amend the order under that sub-section is relation to any matter other than the matter which has been so considered and decided.

(3) An order passed under sub-section (1), shall be deemed to be an order passed under the same provision of law under which the original order, the mistake in which was rectified, has been passed.'

6. It is no longer res integra that if, as in the instant cases, the assessees had been given exemption in respect of taxable turnover for the relevant assessment year which was otherwise subject to tax by the 1969 Amendment Act, if the dealer had collected the tax, it was liable to be recovered under section 25-A of the Act : see Commercial Tax Officer, Bangalore v. Sri Venkateswara Oil Mills : [1973]3SCR742 .

7. Sri K. Srinivasan, the learned counsel appearing for the petitioners in all the petitions, has pointed out that whatever be the defence taken by the petitioners in response to the notice issued under section 12-A of the Act, the impugned notice at exhibit B calling upon them to show cause why the assessment orders should not be rectified would clearly be impermissible inasmuch as the same was beyond five years from the date of the respective assessment order, i.e., 30th August, 1967, 19th June, 1967, and 6th January, 1967. The fact that the impugned notices have been issued beyond five years from the date of the respective assessment orders is not in dispute. What is contended for the respondent-Commercial Tax Officer is that this Court should either construe the notice issued in 1969 under section 12-A of the Act as sufficient notice to rectify the respective assessment orders in respect of the petitioners or in the alternative the impugned notices should be construed as a mere demand made for the tax though it purports to be a notice under section 25-A of the Act.

8. The thrust of the argument is that if this Court were to come to the conclusion that what is proposed is no more than the rectification of the assessment orders on account of the apparent error of law in the assessment orders, notices issued under section 12-A of the Act would amount to commencing proceedings under section 25-A of the Act. This is clearly impermissible. Section 12-A as is now settled, is a machinery available to the assessing authority to bring to tax such turnover of a dealer which has escaped assessment. The escapement could be the result of either oversight on the part of the assessing authority or on account of concealment or suppression by the dealer. In either of the cases, the procedure to be followed is a fresh assessment after investigation of the relevant books of account and the records and such other new material which the assessing authority may have in his possession at the time of issuing the notice. Whereas rectification on the other hand is permissible only where there is an apparent error of law on the face of the record and does not involve fresh investigation or consideration of facts. In the notices issued to the petitioners in 1969, they were clearly asked to produce their books of account for the relevant assessment year in order to bring to tax what according to the notice was escaped turnover of inter-State sale of groundnuts. The counsel for petitioners argued that the cases of the petitioners did not involve any escapement at all as the turnover was disclosed and exemption was claimed in view of Yaddalam's case : [1965]2SCR129 and the exemption was allowed by the assessing authority and therefore, the same was outside the purview of section 12-A of the Act. He has further argued that the department which kept silent for nine years could not invoke its jurisdiction under section 25-A of the Act contrary to the express limitation contained in that section itself. The learned counsel's contention has to be allowed as the department by issuing the impugned notice at exhibit B practically admits that it is not a case of escaped assessment but a case of apparent error requiring rectification. To construe the notice issued under section 12-A of the Act as notice under section 25-A of the Act would be wholly impermissible and contrary to law.

9. It is next contended for the respondent-Commercial Tax Officer, that having regard to the ruling of this Court in Gill and Company's case [1973] 31 STC 336 (FB), the impugned notice should be construed as a mere demand and therefore, the petitioners were liable to pay the tax. This contention is not well taken. A demand follows a concluded assessment. Without an assessment there cannot be a demand. The impugned notice merely mentioned the amount of inter-State sales turnover of the petitioners in groundnut which was exempted and no mention is made of any tax being due.

10. In any event it is useful to recall that the petitioners have taken the stand that they had not collected the tax in respect of inter-State turnover at all and, therefore, they were entitled to exemption under section 10 of the 1969 Amendment Act. In fact without the tax being quantified by the assessing authority a demand or reminder cannot issue. The notice makes it clear that the petitioners should appear with their books of account before the Commercial Tax Officer so that he could make sure whether they had or had not collected Central sales tax on the turnover originally exempted. Having regard to this statement of fact in the impugned notice itself, it cannot be said to be either a demand or a reminder on the basis of which this Court rendered the opinion in Gill & Company's case [1973] 31 STC 336 (FB). In order to make the above position clear, it is necessary to state that the ratio decided in Gill & Company's case [1973] 31 STC 336 (FB) will be advantageous to the revenue only if it is demonstrated that an assessment was concluded against the assessee and only the amount of tax on such assessment remained unpaid when the demand or reminder was issued without any final rectification proceedings.

11. For the above reasons, the petitioners succeed. The rule is made absolute and the impugned notices at exhibit B in all the petitions are hereby quashed. There will be no order as to costs.

12. Petitions allowed.


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