INTELLIGENCE OFFICER Vs. SWARNAMBHAL JEWELLERS

JUDGEMENT

(1.) W. A. No. 445 of 1982 arises from the judgment in swarnambhal Jewellers v. Intelligence Officer. 1982 K L. T. 763 (O. P. No. 6752 of 1980 ). W. A. No. 459 of 1984 arises from the judgment in O. P. No. 6560 of 1981. and that judgment is based on the judgment in the other case. Both these cases have arisen in almost identical circumstances.

(2.) THE petitioner in each of the two proceedings is an assessee under the Kerala General Sales Tax act. 1963 (the "act" ). By the impugned order in O. P. No. 6560 of 1981. penalty was imposed upon the assessee under S. 45-A (1) (b) and (c) of the Act. By the impugned order in O. P. No. 4752 of 1980. notice was issued to the assessee as to why penalty should not be imposed under S. 45-A. THE main contention of each of the petitioners before the learned judge was that the officer who imposed the penalty under s. 45-A was not competent to do so as no power had been specifically conferred upon him under that provision. Upholding that contention. the learned judge held that. in the absence of a notification in terms of Explanation II to s. 45-A (1 ). an officer. though an assessing authority by reason of the notification issued under S. 2 (iv) and 3 (2 ). was not competent to exercise the power under S. 45-A. That power could be validly exercised only by person on whom power was specifically conferred under S. 45-A (1 ). THE learned judge assumed that. for all practical purposes. the notification issued in 1963 under s. 2 (iv) and 3 (2) was superseded by Explanation II to S. 45-A (1) and held that. in the absence of a notification under the latter provision. the assessing authority who acted under the notification of 1963 had no power under S. 45-A.

(3.) THE assessing authority for the purpose of the Act is defined under S. 2 (iv) as follows: "'assessing authority' means any person authorised by the Government or by any authority empowered by them to make any assessment under this Act. " S. 3 refers to Sales Tax Authorities. Sub-s. (2) of that section reads: "the Government shall appoint as many Deputy commissioners. Appellate Assistant Commissioners. Inspecting Assistant commissioners. Sales Tax Officers and such other officers as they think fit for the purpose of performing the functions respectively assigned to them by or under this Act. Such officers shall perform the said functions within such local limits as the Government or any authority or officer empowered by them In this behalf may assign to them. " Sales-tax Officers. along with other officers. are appointed by the Government under this provision to perform such functions as are assigned to them by or under the Act. THEy perform such functions within such local limits as the Government may specify. In exercise of the powers conferred under S. 2 (iv) and 3 (2 ). the Government have by G. O. MS. No. 278/rev. dated 30-3-1963 appointed and empowered. among others. the Intelligence officers to exercise the powers of an assessing authority within specified areas. An officer so authorised in terms of that notification is an assessing authority as defined in S. 2 (iv) and is empowered to act in terms of S. 3 (2) in respect of all matters assigned to him under the Act. It is not disputed that the concerned Intelligence Officer who issued the order impugned in each of these two proceedings had been duly authorised under S. 2 (iv) and 3 (2) as an assessing authority and that be is entitled to make an assessment in respect of the assessee in question. THE argument. however. is that. although an assessing authority for the purpose of assessment of tax. he is not an assessing authority for the purpose of imposing penalty under S. 45-A.