K N FALGUNAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Ext. P6 proceedings of the Sales Tax Officer and Ext. P7 penalty proceedings are under challenge. Petitioner also wants this Court to interfere with the recovery proceedings emanating therefrom. Petitioner was a dealer of the Indian made foreign liquor. For the assessment year, 1993-94, on the basis of Ext. P1, the petitioner was subjected to tax liability, by order dated 9-1-1995. Thereafter, a notice under Sec. 19 had been issued to him suggesting that there was under assessment since turn over had escaped from the assessment. Notwithstanding the objections of the petitioner, Ext. P6 revised assessment had been passed. A fresh turn over was determined, and the balance tax was demanded along with penal interest. Ext. P7 was a consequential notice, proposing action under Sec. 45(A) of the Sales Tax Act. The submission put in by the learned Counsel for the petitioner is that Ext. P6 was issued without authority of law and therefore could not have been enforceable. He also submits that the version of the officer that there was necessity for a revised assessment also was practically wrong, but in view of the question of law that has been urged, I do not intend to go to the merits of the said contention.

(2.) Reliance is placed by the department on Sec. 19, as it stood amended on 1-4-1998. Where for any reason the whole or any part of the turnover of business of a dealer has escaped assessment to tax in any year or had been assessed at the rate lower than the rate at which it is assessable or any deduction is made wrongly therefrom, the assessing authority, at any time within five years from the expiry of the year to which the tax relates, can proceed to the best of its judgment, to determine the turn which has escaped assessment. It is submitted that even though the assessment year in respect of the petitioners was 1993-94, this gave power to the department to initiate proceedings, in view of the amendment, as the four year period prevailing up to that date stood automatically enhanced by one year to five years.

(3.) In the counter affidavit , the submissions made are not very precise, as there is reference to amendment of Sec. 19 from 1/4/1994, but this obviously can only be a mistake. As far as the petitioner is concerned, since the assessment year concerned, since the assessment year concerned was 1993-94, his liability for being subjected to a revised assessment under Sec. 19 had come to a close by 31st of March, 1998. The amendment of the provision by Finance Act (14 of 1998) has come into force only with effect from 1-4-1994. Therefore, by the time the provision was introduced in the statute book, the petitioner s assessment for 1993-94 was out of reach of the Department as the four year period had expired on the date the said amendment was introduced. Therefore, the contention of the petitioner, is to be accepted, that on the strength of amendment, 1998 ands Sec. 19 it is not possible to reopen the assessment in exercise of powers so conferred.