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2009 DIGILAW 915 (KER)

Wilson Joseph v. Commercial Tax Officer

2009-09-23

C.N.RAMACHANDRAN NAIR, V.K.MOHANAN

body2009
Judgment :- Ramachandran Nair. J. The question raised in the Writ Appeal filed by the appellant-dealer registered under the CST Act is whether CST assessment could be completed by the Fast Track Team under the provisions of Section 17D of the KGST Act. The appellant's case is that the provisions of Section 17D for completion of pending assessments by Fast Track Team appointed by the Commissioner of Commercial Taxes apply only to assessments pending under the local sales tax Act and therefore pending CST assessments cannot be completed by the Fast Track Team under Section 17D of the K.G.S.T. Act. Learned single Judge has however rejected the contention and hence this Writ Appeal. We have heard counsel appearing for the appellant and Government Pleader for the respondents. 2. Section 17D of the KGST Act is a newly introduced provision which enables completion of pending sales tax assessments by a Fast Track Team appointed by the Commissioner of Commercial Taxes. Obviously the purpose is to clear the arrears of assessments pending so that new regime introduced under the Kerala Value Added Tax Act could be effectively implemented. Assessments pending are not only of local sales tax assessments, but also assessments to be completed under the CST Act as well. The procedure for assessment under the CST Act is the very same applicable for assessment under the KGST Act because in the first place CST Act or Rules do not lay down detailed procedure for assessment and no officers are appointed under the said Act. On the other hand Section 9(2) of the CST Act which provides for completion of CST assessment is as follows: 9. Levy and collection of tax and penalties:- (1) ..... On the other hand Section 9(2) of the CST Act which provides for completion of CST assessment is as follows: 9. Levy and collection of tax and penalties:- (1) ..... (2) Subject to the other provisions of this Act, and the rules made thereunder the authorities for the time being empowered to assess, re-assess, collect and enforce payment of any tax under the general sales tax law of the appropriate State shall, on behalf of the Government of India, assess, reassess, collect and enforce payment of tax, including any interest or penalty payable by a dealer under this Act as if the tax or interest or penalty payable by such a dealer under this Act is a tax or interest or penalty payable under the general sales tax law of the State; and for this purpose they may exercise all or any of the powers they have under the general sales tax law of the State; and the provisions of such law, including provisions relating to returns, provisional assessment advance payment of tax, registration of the transferee of any business, imposition of the tax liability of a person carrying on business on the transferee of, or successor to such business, transfer of liability of any firm or Hindu undivided family to pay tax in the event of the dissolution of such firm or partition of such family, recovery of tax from third parties, appeals, reviews, revisions, references, refunds, rebates, interest or penalty, charging or payment of interest compounding of offences and treatment of documents furnished by a dealer as confidential, shall apply accordingly. Provided that if in any State or part thereof is no general sales tax law in force, the Central Government may, by rules made in this behalf make necessary provision for all or any of the matters specified in this sub-section. It is clear from the above provision that the authorities constituted to make assessment under the Local Act are vested with powers to assess, reassess, collect and enforce payment of tax, penalty, interest, etc. due under the CST Act. Therefore whichever authority is vested with the power to make assessment under the local Act automatically gets power for making assessment under the CST Act by virtue of sub-section (2) of Section 9 of the CST Act. due under the CST Act. Therefore whichever authority is vested with the power to make assessment under the local Act automatically gets power for making assessment under the CST Act by virtue of sub-section (2) of Section 9 of the CST Act. The position is the same so far as the procedure for assessment prescribed under the KGST Act and Rules which squarely applies for assessment under the CST Act and Rules. Therefore we are of the view that procedure for assessment by Fast Track Team provided under Section 17D of the KGST Act is applicable to CST assessments as well. Even though counsel for the appellant contended that State has in another case filed an affidavit stating that they do not intend to complete CST assessment by invoking the provisions of Section 17D, the same does not mean that Fast Track Team does not have powers to make assessments under the CST Act. In other words, the applicability of Section 17D of the KGST Act for completion of pending assessments under the CST Act does not bar regular assessing officers to complete CST assessments if the Fast Track Team does not take up such assessments. We therefore uphold the judgment of the learned single Judge and dismiss the Writ Appeal. 3. Even though we dismiss the Writ Appeal, we notice that the assessments were made exparte in this case. The appellant's remedy against such assessments is to file appeal before the Tribunal after deposit of full amount of tax which is the requirement of provisions 17D(5) for maintainability of appeal before the Tribunal. However it is seen that substantial amount of tax payable is on account of appellant's furnishing of defective C Forms. In the circumstances, we grant conditional relief to the appellant in the following lines. Appellant will deposit Rs.50,000/- towards assessed tax for 2003-04 and Rs.1 lakh towards assessed tax for 2004-05 before the Assessing Officer within two weeks from the date of receipt of a copy of this judgment. If payments are made as above and receipts produced before the Inspecting Assistant Commissioner, Irinjalakuda, he will give a posting date in coordination with other members of the Fast Tract Team which made regular assessment, and appellant will produce books of accounts and appear for hearing on that date. If payments are made as above and receipts produced before the Inspecting Assistant Commissioner, Irinjalakuda, he will give a posting date in coordination with other members of the Fast Tract Team which made regular assessment, and appellant will produce books of accounts and appear for hearing on that date. Assessments made will be revised after giving proper opportunity to the appellant to produce books of accounts and other records in support of their case. This direction will be complied with by the Fast Track Team only if the assessee makes payment as above and produces receipt before the Inspecting Asst. Commissioner and co-operates in the revised assessment proceedings. If any member of the Fast Track Team is not available for any reason, IAC will in consultation with the Commissioner take another eligible member and constitute Fast Track Team for completion of assessments. There will be direction to the Fast Track Team to complete the assessment afresh within a period of two months from the date of receipt of a copy of this judgment along with remittances of tax as above. The deposits made as above will be adjusted towards tax finally assessed and if there is any excess payment, the same will be refunded to the appellant without any delay. On payment of the amount as above, recovery of the balance will stand stayed till revision of assessment as above.