K BANAPPA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) Since a common question of law arises for decision in these revision petitions under Sec.23(1) of the Karnataka Sales Tax Act, 1957, hereinafter to be referred to as the principal Act, they are disposed of by this common order. The petitioner in these revision petitions is a partnership firm and a registered dealer in cotton seeds which are 'declared goods' within the meaning of the Central Sales Tax Act. It is also an. assessee under the principal Act. In App.Petn. Nos. 521, 522, 523, 525 & 526 of 1968-69 relating to the assessment years 1961-62, 62-63, 63-64, 64-65, 65-66 & 66-67 and App Petn Nos,658, 659/1968-69 relating to the assessment years 1959-60 & 60-61, orders were made by the Deputy Commissioner of Commercial Taxes (Appeals), Bangalore, the appellate authority under the principal Act, on 28-1-69 and 25-3-69 respectively, directing refund of taxes to the assessee haying regard to the state of law then prevailing. However, consequent upon the amendment of Sec.15 of the Central Sales Tax Act, 1956, by the Central Sales Tax (Amendment) Act, 1972, with effect from 1st Oct, 1958, the validation provision contained in Sec. 15 of the Central Sales Tax (Amendment) Act, 1972 and consequential amendments made to the principal Apt by Karnataka Act 7 of 1973, the Deputy Commr of Comml Taxes (Appeals) Bangalore-the appellate authority, with the object of rectifying the earlier orders made by him on 28-1-69 and 25-3-69 in the appeals referred to earlier, initiated proceedings under Sec.25A of the principal Act, which was introduced by the Karnataka Sales Tax (Second Amendment) Act, 1970, hereinafter to be referred to as the Amendmemt Act, for rectification by issuing to the assessee a notice dated 13-8-73 informing it of the proposed rectification and calling upon it to appear and show causel against such proposal on the date of hearing of the cases, fixed for 15-8-73. As a result of an adjournment of the cases on 15-8-73, another notice was issued to the assessee, fixing the adjourned date of hearing of the cases on 29-12-73 which notice was returned by the Commercial Tax Officer with the report that the party was not in station. A further notice is said to have been issued to the assessee by registered post intimating that the cases relating to the proposed rectification would be taken up for hearing by the appellate authority on 18-1-74 at Bangalore. Even though there wast nothing on record to show that the assessec was served with the notice of the proposed rectification, the Deputy Commr of Comml Taxes (Appeals), Bangalore, made an order dated 18-1-74 in the said Redtification Cases numbered by him as RAP Nos.11 to 17 of 1973-74, holding thait the assessee was not entitled to the refund of taxes ordered in the previous orders dated 28-1-69 and 25-3-69 and directing the assessing authority to recover from the assessee the tax which had been refunded to it. Aggrieved by the said order of the Deputy Commr of Comml Taxes (Appeals), Bangalote the appellate authority under the principal Act, the assessee preferred appeals under Sec.22 of the principal Act before the Karnataka Sales Tax Appellate Tribunal in STA Nos.175 to 181 of 1974. The Tribunal, on a consideration of the said appeals, took the view that the common order of rectification made in these cases was 'premature' having regard to the admitted fact that it was made without service of notice of the proposed rectification on the asgessee which was adversely affected by such an order. Consequently, the Tribunal set aside the order of the appellate authority and remanded the cases back to it for disposal according to law after affording a reasonable opportunity of hearing to the agsessee. Aggrieved by the. said common order of the Tribunal, the assegsee preferred the revision petitions under consideration.

(2.) It was contended before us by Sri B.P.Gandhi, learned Counsel appearing for the petitioner in these revision petitions, that the Tribunal having rightly set aside the order under appeal, ought not to have remanded the cases for reconsideration, as, according to him, the rectification proceedings before the appellate authority could not be considered to have even commenced in the absence of service of notice of the proposed rectification on the assessee. The said contention of the learned Counsel for the petitioner wag attempted to be made good on the interpretation sought to be placed by him on sub-Sec(1) of Sec.25A of the principal Act as amended by the Amendment Act and the proviso thereto. But, when his attention, was invited by us to the provision in Sec.8 of the Amendment Act as the one which would squarely meet the contention raised by him, he was not able to demonstrate before us as to how the said provision was not applicable to these cases, even though a feeble attempt was made by him in the Said regard.

(3.) Having regard to the contention raised on on behalf of the petitioner and the provision enacted in Sec.8 of the Amendment Act, the question of law which arises for our decision in these revision petitions can be formulated thus : Whether proceedings under Section 25A to rectify mistakes apparent from the record in any order made under the principal Act, by an assessing authority, appellate authority, revising authority, the Appellate Tribunal or the High Court at any time before the commencement of the Amendment Act, can be considered to have not commenced within the meaning of Sec.8 of the Amendment Act, until a notice of the proposed rectification is served on the assessee?,