KALA TRADING COMPANY Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) THIS is an appeal filed against the orders of Appellate Deputy Commissioner (CT), Kurnool in common proceedings in Appeal No. 103/2002 -03, dated 24 -10 -2002. The appellant is M/s Kala Trading Company, Hindupur. It is on the rolls of Commercial Tax Officer, Hindupur. The appellant deals in Tamarindseed and Tamarind Kernel. The Commercial Tax Officer passed final assessment order for the year 1996 -97 under the provisions of CST Act. Again the Commercial Tax Officer passed re -assessment orders for the same assessment year on 2 -2 -2002. Originally, the Commercial Tax Officer granted concessional rate of taxation on the inter -State Export Sales of Tamarind seed Kernels against 'H' forms. But after receiving the audit objection from the Accountant General, Andhra Pradesh, Hyderabad, the Commercial Tax Officer proposed to pass reassessment order withdrawing the concessional rate of taxation since the exporters exported tamarind seed kernel powder. It is observed by the Audit Officers as well as the Commercial Tax Officer that the 'H' form shows that the appellant sold tamarind -seed but not tamarind -kernel and as the exporters sold tamarind kernel powder, the goods tamarind -seed is different from tamarind kernel powder and intended to withdraw the concessional rate of taxation and accordingly issued show cause notice. The appellant filed its objections stating that what was sold by them is tamarind kernel only but not tamarind seed and also produced a certificate issued by the dealer stating that they purchased tamarind kernel only but not tamarind seed. However, the Commercial Tax Officer held that it is an after thought since show cause notice has been issued proposing re -assessment. Accordingly, he withdrew the concessional rate of taxation and levied tax. An appeal had been preferred before the Appellate Deputy Commissioner (CT), Kurnool stating that they sold tamarind kernel only but not tamarind -seed. It is also canvassed that the re -assessment is barred by time as the order of assessment was served on them on 12 -2 -1998 whereas the re -assessment order was served on 2 -8 -2002. It is stated that there is a delay of six months in serving the order. Hence, the re -assessment order purported to have been passed on 2 -2 -2002 was not actually passed on the said date but it was passed beyond the prescribed period of limitation for re -assessment. However, the Appellate Deputy Commissioner dismissed the appeal. Aggrieved by the same, the present appeal has been preferred.

(2.) IN the appeal grounds, it has been contended by the appellant that the re -assessment is barred by time. Reliance has been placed on the decision rendered by Hon'ble Supreme Court in M. Ramakistaih & Co. & Others & Others reported in . So much so, it has been contended in the appeal grounds that the appellant sold tamarind -seed kernel only but by mistake in the 'H' form it was written as tamarind -seed and on the reverse side of 'H' forms, it was specifically stated that the goods that were sold against 'H' form is nothing but tamarind -seed kernel. Certificate issued by the dealer was also produced along with copies of the bills showing that the appellant sold tamarind kernel only. However, the State Representative contended that production of certificate issued by dealer is subsequent thought and that the order passed by the Commercial Tax Officer while making re -assessment is within the time, since the original assessment order was served on 16 -2 -1998 whereas the reassessment order is dated 2 -2 -2002. In view of the contentions raised, now the following points will arise for determination:

(3.) APART from it, when re -assessment order has to be passed, it must be made if new material came to the notice of the assessing authority. If it is found that some turnover had been escaped then only re -assessment can be made. Section 14(4) of APGST Act deals with the powers of the assessing authority for making re -assessment, it runs as follows: