ROHAN ASSOCIATES Vs. ADDITIONAL COMMISSIONER OF COMMERCIAL TAXES

JUDGEMENT

(1.) THIS appeal is by the assessee challenging the order passed by the revisional authority under section 22(A)(1) of the Karnataka Sales Tax Act, 1957 (for short, hereinafter referred to as, "the Act"). The assessee is a partnership firm and was registered as a dealer under the provisions of the Act during the year 2004 -05. The assessee is in the business of construction and sale of residential houses. The assessee bona fide believed that since they were putting up construction on the land owned by them and they were selling the house with the undivided shares, the provisions of the Act are not attracted. However, in view of the judgment of the apex court in the case of K. Raheja Development Corporation v. State of Karnataka : [2005] 141 STC 298 (SC), wherein it was held, the constructions put up on own land by execution of works contract fall within the purview of the Act, appellant was obliged to file the return and pay the tax. On such return being filed, the Assistant Commissioner of Commercial Taxes (Transitions) 11, Bangalore, passed the assessment order dated February 7, 2007 under the Act for the year 2004 -05. While passing the said order, the assessing officer granted several benefits by way of reductions and also refund. The Commissioner of Commercial Taxes (Administration and Recovery), Bangalore, issued notice on May 21, 2009 proposing to revise the assessment order passed as aforesaid. The assessee filed statement of objections. On consideration of the same, the Joint Commissioner of Commercial Taxes by his order dated July 29, 2008 dropped the revisional proceedings. It is thereafter, the Additional Commissioner of Commercial Taxes, Zone I, Bangalore, issued notice dated July 21, 2009, proposing to set aside the revisional order passed by the Joint Commissioner of Commercial Taxes in respect of the assessment order for the years 2004 -05. The assessee filed statement of objections. After hearing him, the Additional Commissioner of Commercial Taxes, passed an order dated September 25, 2009, set aside the revisional order passed under section 21(4) of the Act as well as the assessment order passed for the years 2004 -05 and remanded the matter in respect of certain items. However, he recorded his finding on certain other aspects. Aggrieved by the said order, the assessee is before this court.

(2.) THE learned counsel for the assessee, assailing the impugned order firstly contended, when the assessment order was revised under section 21, the assessment order merged with that revisional order, therefore, the Additional Commissioner of Commercial Taxes had no jurisdiction to again revise the assessment order as it was not in existence at all. Therefore, he submits, the impugned order is liable to be set aside.

(3.) PER contra, learned Government Advocate supported the impugned order.