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2008 DIGILAW 398 (KAR)

K. MADHAVA KAMATH BROTHERS AND COMPANY v. ASSISTANT COMMISSIONER OF COMMERCIAL TAXES (AUDIT-1), DIVISIONAL VAT OFFICE, MANGALORE.

2008-07-28

D.V.SHYLENDRA KUMAR

body2008
ORDER Writ Petition is against the Re-assessment Order passed by the Assessing Authority on 31.3.2008 under Section 39(1) of the Karnataka Value Added Tax Act, 2003. Notice had been issued on 1.3.2008 (Annexure - B) for reopening and redoing the assessment on the proposition indicated in the notice. Seven days time had been issued to the Assessee to respond to the notice. It appears the Assessee had not responded within the time prescribed but filed belated objections dated 21.3.2008 filed on 25.3.2008 (Annexure - C). The Officer who had issued the notice though has passed the Order on 31.3.2008, had passed the order on the basis that there was no objection to the proposition. When such an order was received by the Petitioner, it appears the petitioner filed an application seeking for rectification of the order pointing out that when the Petitioner had filed its objections and it was before him, the Officer could not have ignored the same, and therefore, the order calls for rectification in the light of the objections which had been ignored. That request also having been rejected in terms of the endorsement dated 22.4.2008 (Annexure - G), the present writ petition seeking for quashing of the Assessment Order at Annexure - D as well as the endorsement at Annexure - G. Notice had been issued to the Respondents. Respondents are represented by Sri K. M. Shivayogiswamy, learned Government Pleader. Submission of Sri K. M. Shivayogiswamy, learned Government Pleader is that the impugned orders are orders which could be appealed against; that the assessee could avail of the remedy of appeal and also points out that there is no error in the order inasmuch as the Assessing Officer had in the absence of any objections received within the stipulated time, passed the order but it was issued later and it was dated 31.3.2008; that even before receipt of the objections on 25.3.2008, the order had been passed, and therefore, there was no way of going back; that it is open to the Petitioner to avail of the Appellate remedy; that seeking for rectification is not a ground for insisting on an order to be redone particularly when the assessee had the Appellate remedy etc. While there could not have been any interference only on the basis of the endorsement issued in response to a Rectification Application, in the present case, I find that the matter is little more serious, in the sense, when the Assessing Authority passed orders on the Proposition Notice and it is issued as dated 31.3.2008, it is not open to the Assessing Authority to ignore any objections which was available before it before this date. The argument that an order had been passed and had been kept in the file cannot be accepted for the reason that an order is to be dated on the day it is passed and not on a subsequent date when it is issued. If the order is dated on a particular day, no argument can be heard to indicate that it had already been passed earlier and it is dated subsequently. In either view, the argument that the Assessing Authority is justified in passing the order as the Assessee had not responded within the stipulated time of seven days for filing objections cannot be accepted as even the belated objection if is available before the Assessing Authority before passing the orders, that should be taken note of. Time-limit given is only to impress upon the Assessee to file objections and it is not a statutory time-limit whereafter the Officers cannot take note of the objections. In the circumstances, while the impugned Order dated 31.3.2008 passed by Respondent 1 (Annexure - D) and Endorsement dated 22.4.2008 (Annexure - G) are quashed, the Assessing Authority is directed to pass orders afresh after looking into the objections as at Annexure - B, dated 21.3.2008 said to have been submitted in the Office of the Respondents on 25.3.2008. Writ Petition allowed. Rule issued and made absolute. Sri K. M. Shivayogiswamy, learned Government Pleader permitted to file Memo of Appearance within eight weeks.