ASSISTANT COMMISSIONER ASSESSMENT Vs. HINDALCO INDUSTRIES LTD

JUDGEMENT

(1.) Appeal is filed by the State challenging the judgment of the learned single judge1 directing the assessing officer to issue notice of demand for the purpose of recovering the arrears as a defaulter and to enable the assessee to move for stay in appeal. We have heard the Government Pleader appearing for the appellant and counsel appearing for the respondent.

(2.) The CST assessment of the respondent for the year 1998-99 was completed vide annexure Al dated October 30, 2002. Interest of Rs. 64,73,529 is seen demanded from May 1, 1999 till date of completion of assessment. The respondent filed appeal against the said assessment and the appellate authority directed modification of the assessment order. Pursuant to the order in appeal, the assessing officer revised the assessment vide exhibit P1 dated January 31, 2007. In the said order interest is seen calculated from March 7, 2003 to March 31, 2007 and the total interest demanded is Rs. 47,94,137. However, the assessing officer later noticed that the assessment revised pursuant to the order in appeal vide exhibit P1 is not in accordance with the direction contained in the appellate order and therefore he issued exhibit P3 proceedings on March 14, 2008 rectifying the assessment and demanding interest in accordance with the direction contained in the appellate order from May 1, 1999 to March, 2008. The total interest demanded under the rectified order, namely, exhibit P3, is Rs. 1,22,98,002. Even though respondent filed appeal against exhibit P3 order, the contention of the respondent is that recovery cannot be initiated as no demand notice was served along with rectified order and consequently respondent was not a defaulter. The learned single judge accepted the contention of the appellant and directed the assessing officer to issue demand of notice for entertaining appeal and for enabling recovery after default. Even though State filed review petition, the same was dismissed by the learned single judge. Consequently this appeal is filed against the judgment.

(3.) The case of the appellant is that while rectifying the assessment order, namely, exhibit P1, issued pursuant to the appellate order, the assessing officer rectified the demand notice issued as well and consequently there is no need to issue another demand notice. However, the contention of the respondent based on Section 3(1)(b) of the Kerala Taxation Laws (Continuation and Validation of Recovery Proceedings) Act, 1967 is that since there is increase in the demand consequent upon modification or rectification of assessment, the assessee is entitled to fresh notice of demand and in the absence of notice of demand the assessee cannot be treated as defaulter for the purpose of levy of interest and for recovery. We are of the view that the question whether fresh notice of demand is required or not does not arise in this case because rectification proposed was not only for the assessment issued but also for the notice of demand issued. In fact, respondent does not dispute that they were in receipt of notice of demand pursuant to original assessment and pursuant to revised order issued under orders of the appellate authority. The only question is whether fresh notice of demand should be issued once the revised order issued pursuant to appellate order is again rectified. In this case we notice from exhibit P3 proceedings that the assessing officer besides rectifying the revised order, rectified the notice of demand as well by the following statement contained in exhibit P3 "the demand notice already issued is rectified to the above extent". There can be no doubt that the effect of this operative portion of the order is that the interest portion demanded in the notice of demand already issued will stand substituted by the amount referred to in the rectified order. The technical contention of the respondent that fresh notice of demand has to be served is not tenable because demand notice already issued is rectified by the assessing officer and the rectified order serves as a fresh notice of demand pursuant to rectified assessment order issued under Section 43 of the Kerala General Sales Tax Act, 1963. We are therefore of the view that the learned single judge was in error in directing issue of fresh demand notice which is achieved by the assessing officer by rectifying the earlier notice of demand already issued. In other words, once the assessment is modified through rectification, it is up to the assessing officer to issue a fresh notice of demand in terms of rectified order or to rectify notice of demand already issued. If rectification is carried out to demand notice, it has the effect of issuing fresh notice of demand and so much so there is no need to issue another notice of demand after rectifying the notice of demand already issued. Even though counsel for the respondent submitted that rectification was carried out without notice, we find that respondent's representative was present in the proceedings and therefore this contention raised is not tenable. We therefore allow the writ appeal by vacating the judgment of learned single judge and by holding that there is no necessity to issue fresh notice of demand in this case as rectification has the effect of issuing fresh notice of demand. The appellant is free to treat the assessee as a defaulter and proceed for recovery if stay is not obtained and produced.