VASU AGARBATHIES Vs. DEPUTY COMMISSIONER OF COMMERCIAL TAXES

JUDGEMENT

(1.) This Writ Petition is directed against the assessment order dated 16.5.1995 made against the Petitioner for the assessment period 1991-92 and the consequential demand notice which have been filed at Annexures D and E respectively to the Writ Petition.

(2.) Petitioner is a partnership firm carrying on business of manufacturing and sale of Agarbatties. It is registered under the provisions of the Karnataka Sales Tax Act, 1957 (hereinafter called 'the Act'). Subsequent to service of notice issued against the Petitioner under Section 12(3) of the Act for the assessment year 1991-92, an order of assessment dated 30.11.1994 was passed against it determining its tax liability at Rs. 45,81,592.00. Consequently the firm was served with a demand notice at Annexure-B requiring it to pay Rs. 7,19,111.00 being over and above the admitted tax paid by him along with a copy of the assessment order. Against the said assessment order, Petitioner preferred an appeal before the Joint Commissioner of Commercial Taxes (Appeals), Mysore, which was numbered as KST.AP.402/1994-1995. One of the contentions raised before the appellate authority was that since the communicating copy of the assessment order had not been signed by the assessing authority, the assessment as made is illegal. The appellate authority called for the original assessment records and found that the original assessment order has duly been signed by the assessing authority but only the communicating copy thereof, may be due to inadvertance, did not bear the signature of the said authority. Still the appellate authority proceeded to declare the assessment order at Annexure-A as nullity by assigning the following reasons: "Under no stretch of imagination, an order served on the appellant which does not bear the signature of the assessing authority can be construed as a legal order, whatever the circumstantial evidence be. In view of this, it is held that the order dated 30.11.1994 is a nullity." Faced with the said appellate order the assessing authority drew up a fresh order of assessment dated 16.5.1995 purporting to act under Section 12(3) of the Act (Annexure-D) which is in verbatim the same as the earlier assessment order at Annexure-A and has served the same by signing and putting his seal on each page of it along with the demand notice. The said order and the demand notice are at Annexures D and E to the Writ Petition.

(3.) Mr. Vasan, learned Counsel for the petitioner assails the second assessment order and the demand notice on the ground that the same have been passed without service of any notice on the petitioner as mandatorily required under Section 12(3) of the Act. On the other hand, Mr. Nazeer, learned Counsel for the respondent assessing authority has submitted that the order of the appellate authority at Annexure-C is itself an illegal order and therefore, even if the second order is found to have been passed in violation of the prescribed procedure, it should not be disturbed, because that will amount to upholding the appellate order which is per se illegal. He alternatively submitted that both the appellate order and the second assessment order being illegal be quashed by this Court and the appellate authority be directed to dispose of the appeal filed before him by the petitioner afresh.