VDO MARINE INSTRUMENTS Vs. COMMERCIAL TAX OFFICER

JUDGEMENT

(1.) The petitioner is a partnership firm and a dealer in marine equipment. It is a registered dealer under the Kerala General Sales Tax Act, 1963 [hereinafter referred to as the 'K.G.S.T. Act']. The petitioner filed returns declaring its total and taxable turnover for the assessment years 2000-01 and 2001-02, by claiming concessional rate of 3% on goods sold to M/s. Bristol Boats against Form 18. The assessments were completed by the Assessing Officer after allowing the concessional rate claimed by the petitioner. It would appear that, subsequently, the assessments were modified through proceedings for rectification under Section 43 of the K.G.S.T. Act, on the premise that the tax levied at 3% on the strength of Form 18 declaration was not correct for both the years, since, the items covered by the Form 18 declaration could not be treated as component parts and raw materials for the manufacture of Fiber Glass Boat. The assessments were therefore revised by the Assessing authority, for both the years, by levying the higher rate of tax on the turnover that was covered by the Form 18 declaration submitted by the assessee. The petitioner assessee carried the matter in Appeals before the Deputy Commissioner (Appeals), and pursuant to the dismissal of the Appeals, the petitioner challenged the order before the Appellate Tribunal. The Appellate Tribunal found in favour of the petitioner by Ext.P3 common order, wherein, the Appellate Tribunal found that the power of rectification, envisaged under Section 43 of the K.G.S.T. Act, could not have been exercised in the instant case, since, the action of the Assessing Officer virtually amounted to a change of opinion, and rectification proceedings could not be maintained based on a change of opinion of the Assessing Officer. It was therefore found by the Appellate Tribunal that the exercise of power under Section 43 of the K.G.S.T. Act was erroneous, and the revised assessment orders passed pursuant to the exercise of such a power were legally unsustainable. The Appeals filed by the petitioner for the said assessment years were therefore allowed by the Tribunal.

(2.) Pursuant to Ext.P3 order of the Appellate Tribunal, the Department proceeded to issue notices under Section 19(1) read with Section 17(8) of the K.G.S.T. Act, for the purposes of revising the assessments that were already done in favour of the petitioner as already noted above. The provisions of Section 19(1) and Section 17(8) of the K.G.S.T. Act read as under:

(3.) Although the petitioner preferred a detailed reply to the notices issued to him contending inter alia that the re-opening of the assessments that was proposed by the notices issued to it, in terms of Sections 19 and 17(8) of the K.G.S.T. Act, were barred by limitation, the respondent proceeded to revise the assessments, and passed Exts.P7 and P8 orders for the assessment years 2000-01 and 2001-02 respectively. In the writ petition, the petitioner assails Exts.P7 and P8 orders, inter alia, on the ground that the respondent committed a jurisdictional error in passing fresh orders of assessments by invoking the provisions of Section 19 read with Section 17(8) of the K.G.S.T Act, when the reassessment proceedings had become time barred.