STATE OF KERALA Vs. SUPREME BAKERS

JUDGEMENT

(1.) The short question raised in this revision filed by the State is whether the Tribunal was justified in cancelling the revised assessment made under S.19 of the Kerala General Sales Tax Act for the reason that it does not refer to the regular assessment and is not made part of the regular assessment. We have heard the learned Government Pleader appearing for the revision petitioner State and counsel appearing for the respondent - assessee.

(2.) On the short question whether an independent assessment is maintainable under S.19 of the KGST Act without affecting and simultaneously retaining the original assessment completed under S.17(3) of the Act, the Tribunal, by following a judgment of this Court in an income tax matter and another Tribunal's order, took the view that there is no scope for making separate assessment under S.19 and if at all assessment is to be revised, the same has to be done only by revising the original assessment. In other words, according to the Tribunal's finding, there can be one assessment even after the original assessment is revised under S.19. S.19(1) is as follows:

(3.) What is clear from the above is that assessment completed could be re - opened for bringing to tax escaped turnover, when the rate of tax applied is low or if excess relief is granted in the original assessment. In all cases of escaped assessment covered by S.19(1) the officer has to issue notice and make assessment after giving opportunity to the assessee to file objection on the proposal for revision of assessment. The proceedings issued under S.19 is a revised assessment and the same is independent of the original assessment. It is up to the officer to decide whether revised assessment can be made under S.19 to bring to tax escaped turnover without affecting; but simultaneously retaining the original assessment intact. On the other hand, if the assessing officer feels that major revision is required in the original assessment, a consolidated revised assessment can be made under S.19 incorporating the original assessment as well. However, this option available to the officer does not mean that an independent assessment under S.19 is not possible or is not maintainable. In fact, if it is a matter of only making assessment of an item of escaped turnover under S.19, the officer needs to deal with escaped turnover in the S.19 proceedings and revised assessment so issued will be an independent order and the same does not affect the original assessment. Therefore, in our view, the Tribunal thoroughly went wrong in assuming that the turnover escaped assessment issued under S.19(1) of the KGST Act cannot have independent existence. In this case, the assessing officer obviously made a separate assessment under S.19(1) after making original assessment and the assessee also accepted the same by filing separate appeals against the original and revised assessments before the first appellate authority. However, when second appeal was filed the assessee sought to challenge only the appellate order confirming the revised assessment and so much so, the Tribunal considered the appeal filed against the said assessment. The Tribunal's finding is not sustainable either in law or in logic and we therefore, allow the revision filed by the State by setting aside the same. However, since the Tribunal has not considered the correctness of the reassessment on merits, we restore the appeal to the Tribunal and direct them to decide the case on merits after hearing the respondents.