B C MALLIAH Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) In this revision petition presented under section 23(1) of the Karnataka Sales Tax Act, 1957 (hereinafter referred to as the Act), the following question of law arises for consideration :

(2.) The brief facts of the case are as follows : The assessee is an excise contractor at Belgaum for the period commencing from 1st July, 1969, to 30th June, 1970. The Commercial Tax Officer, II Circle, Belgaum, completed the assessment under the Act on 14th December, 1970. The taxable turnover was fixed at Rs. 5,98,000 rejecting the declared turnover at Rs. 4,03,740. Thereafter on 20th December, 1972, the Commissioner of Commercial Taxes, in exercise of his powers under sub-section (4) of section 3-B of the Act issued a general order under which the power to take proceedings for assessment under the Act where the tax liability in a year is Rs. 50,000 or more, was vested in the Assistant Commissioner of Commercial Taxes, Dharwar, in respect of Dharwar, North Kanara and Belgaum Districts. Subsequent to the issue of the aforesaid order the Commercial Tax Officer issued a notice under section 12-A of the Act on 3rd April, 1974, on the ground that it had come to his notice that the turnover of Rs. 37,20,083 of the assessee during the relevant period had escaped assessment while making the assessment order and the petitioner was called upon to show cause as to why the said escaped turnover should not be assessed and brought to tax under the Act. He was also asked to show cause as to why penalty should not be imposed. The petitioner objected to the notice. But the Commercial Tax Officer proceeded to pass final order on 26th September, 1974, determining the total taxable turnover at Rs. 43,18,073 and determined the balance tax liability at Rs. 1,85,095 and also imposed a penalty of equal amount. Aggrieved by the said order the petitioner preferred an appeal before the Deputy Commissioner of Commercial Taxes (Appeals), Belgaum. Before the Deputy Commissioner the main contention urged on behalf of the petitioner was that after the issue of the general order by the Commissioner under section 3-B(4) of the Act on 20th December, 1972, conferring powers to take proceedings for assessment in all cases where the tax liability was Rs. 50,000 or more on the Assistant Commissioner, the Commercial Tax Officer had no jurisdiction to issue the notice under section 12-A of the Act which he did only on 3rd April, 1974. He also contested the determination of the turnover on the ground that it was unsustainable. The Deputy Commissioner rejected the contention regarding the jurisdiction of the Commercial Tax Officer, but was of the view that sufficient opportunity had not been given to the petitioner and the assessment had been concluded without proper enquiry. Accordingly, he remanded the matter for fresh enquiry. The petitioner preferred second appeal before the Tribunal. The Tribunal accepted the contention of the petitioner regarding the absence of jurisdiction of the Commercial Tax Officer only to the extent of his passing the final order. But, the Tribunal held that the issue of notice under section 12-A of the Act was valid. Aggrieved by the said order, the petitioner has presented this revision petition.

(3.) Sri K. Srinivasan, the learned counsel appearing for the petitioner, contended that after the issue of the order under section 3-B(4) of the Act divesting the Commercial Tax Officer of the jurisdiction to take proceedings in all cases where the tax liability was Rs. 50,000 or more and vesting the same in the Assistant Commissioner of Commercial Taxes, the impugned proceedings under section 12-A of the Act could not have been commenced by the Commercial Tax Officer and, therefore, the proceedings commenced in the present case were without jurisdiction.