JOSE MATHEW Vs. ASSISTANT COMMISSIONER, KVAT SPECIAL CIRCLE

JUDGEMENT

(1.) Petitioner was a registered dealer under the Kerala Value Added Tax Act (the Act) on the rolls of the first respondent. For the assessment year 2009-10, the petitioner filed returns conceding a taxable turnover of Rs.4, 72, 62, 342/- and paid the tax due thereon. There was an inspection in the premises of the petitioner by the Intelligence Officer on 6.8.2009 and on the basis of the said inspection, on 22.10.2010, the petitioner was imposed a penalty to the tune of Rs.25, 15, 539/- under Section 67(1) of the Act. The petitioner challenged the said order in revision. While so, proceedings have been initiated by the first respondent for assessing the escaped turnover of the petitioner for the relevant year under Section 25(1) of the Act. Ext.P2 is the notice issued by assessing authority in this connection on 13/1/2011. The petitioner then filed W.P.(C) No.9593 of 2011 before this Court alleging that in terms of Ext.P2 notice, the assessment of the petitioner is proposed to be revised solely based on the penalty imposed on him and that insofar as the penalty order has not become final, it is inappropriate to complete the assessment on the basis of the penalty order. This Court disposed of the said writ petition in terms of Ext.P3 judgment directing the assessing authority to keep in abeyance the proceedings initiated in terms of Ext.P2 notice till the disposal of the revision petition. In terms of the said judgment, this Court also directed the revisional authority to dispose of revision petition preferred against the penalty order within six weeks. It is stated by the petitioner that as it was found later that he is unable to adduce positive evidence negating the factual allegations on the basis of which penalty was imposed on him, he expressed willingness to compound the offence under Section 74 of the Act and the revisional authority, in the circumstances, remitted the matter to the competent authority to enable the petitioner to prefer application under Section 74 of the Act. Ext.P6 is the order issued by the revisional authority in this connection on 17/3/2016. Thereupon, the petitioner preferred an application under Section 74 of the Act and compounded the offences committed by him, by remitting the compounding fee. Later, a fresh notice was issued by assessing authority for assessing the escaped turnover of the petitioner for the relevant year. Ext.P1 is the fresh notice issued by the assessing authority in this connection. The case of the petitioner is that the proceedings initiated in terms of Ext.P1 notice is barred under section 25(1) of the Act, for the time limit prescribed in terms of the said provision for completing the assessment of the escaped turnover for the relevant year expired on 31/3/2015. The petitioner, therefore, filed a detailed objection before the assessing authority raising the aforesaid contention. The objection raised by the petitioner has been rejected and the assessment of the petitioner for the year 2009-10 has been revised in terms of Ext.P5 order. Ext.P5 order is under challenge in this writ petition, though the same is appealable under the Act, on the ground that the same is one issued without jurisdiction.

(2.) Heard the learned counsel for the petitioner as also the learned Government Pleader.

(3.) As noted above, Ext.P1 is a notice issued under Section 25(1) of the Act for assessing the escaped turnover of the petitioner for the year 2009-10. As contended by the petitioner, the time limit prescribed for initiating proceedings for assessing the escaped turnover of a dealer in terms of the provisions contained in Section 25(1) of the Act was five years. In other words, the proceedings for assessing the escaped turnover of the dealer for the year 2009-10 should have been initiated on or before 31.2015. Ext.P1 is issued only on 112.2017. It is on account of this reason, the petitioner contends that the proceedings are barred. As noted above, in terms of Ext.P2 notice, proceedings have been initiated for assessing the escaped turnover of the petitioner for the year 2009-10 as early as on 11.2011 itself. It was at that point of time that the petitioner filed W.P.(C) No.9593 of 2011 and obtained Ext.P3 judgment directing the assessing authority to keep in abeyance the said proceedings till the disposal of the revision petition filed by him challenging the penalty order dated 22.10.2010. The said revision petition was disposed of in terms of Ext.P6 order only on 17.02016. Section 25(5) of the Act provides that in computing the period of limitation for the purpose of Section 25, the time during which the proceedings of assessment remained stayed under orders of a civil court or other competent authority shall be excluded. The petitioner does not dispute the fact that if the period from 02.06.2011, the date of Ext.P3 judgment till 17.02016, the date of Ext.P6 order is excluded as provided for under Section 25(5) of the Act, Ext.P1 proceedings is well within time. To overcome this difficulty, the learned counsel for the petitioner contends that this Court in terms of Ext.P3 judgment directed the revision petition preferred by the petitioner against the penalty order to be disposed of within six weeks and the assessment proceedings was stayed only for the said period and that therefore, even if the said period of six weeks is excluded, the proceedings are barred by limitation. There is no basis for this contention. Paragraphs 3, 4 and 5 of Ext.P3 judgment read thus: