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2010 DIGILAW 353 (KAR)

JAYANTH AND CO. v. STATE OF KARNATAKA.

2010-03-18

H.S.KEMPANNA, K.L.MANJUNATH

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JUDGMENT K. L. Manjunath - The order passed by the Additional Commissioner of Commercial Taxes, Zone 1, Bangalore, dated December 24, 2008 exercising the power under section 22A(1) of the Karnataka Sales Tax Act, 1957 (for short, "the Act") is called in question in this appeal. The appellant is a dealer engaged in manufacturing mosaic tiles. Based on the return filed on March 30, 2005, the assessment order was concluded for the assessment year 2001-02. On February 15, 2005, intelligence wing inspected the books of account and based on the records, assessment was reopened under section 12A of the Act and penalty was levied under section 12A(1A) of the Act. Being aggrieved by the same, an appeal was preferred before the Joint Commissioner of Commercial Taxes (Appeals) which appeal came to be allowed in part modifying the order of reassessment and penalty. Thereafter, the Additional Commissioner exercising his power holding that the order passed by the appellate authority is prejudicial to the interest of the Revenue, reopened the case and set aside the order passed by the Joint Commissioner of Commercial Taxes and restored the order passed by the original authority. This order is called in question in this appeal raising the following substantial questions of law : (1) Whether, on the facts and in the circumstances of the appellant's case, the revisional authority is right in exercising the powers under section 22A of the Act for the period March 31, 2002 ? (2) Whether, the order of revision dated December 24, 2008 under section 22A(1) of the Act sustainable in law ? We have heard the learned counsel for the parties. Admittedly, the order passed by the original authority is a best judgment assessment without considering the case of the assessee. Therefore, we are of the view that the Additional Commissioner has committed an error in setting aside the order of the Joint Commissioner. According to us, even if we have to come to the conclusion that the order of the Joint Commissioner is prejudicial to the interest of the Revenue, since the case of the assessee has not been considered by the assessing officer properly, in all fairness, he should have remanded the matter to the assessing officer. According to us, even if we have to come to the conclusion that the order of the Joint Commissioner is prejudicial to the interest of the Revenue, since the case of the assessee has not been considered by the assessing officer properly, in all fairness, he should have remanded the matter to the assessing officer. Since an error is committed by the Additional Commissioner, without answering the substantial questions of law, the appeal is allowed and the order of the Additional Commissioner is set aside and modified. The matter is remanded to the assessing officer for fresh consideration who shall hear the appellant and dispose of the same in accordance with law.