Sheele Private Limited v. Additional Commissioner of Commercial Taxes
2015-08-05
B.MANOHAR, VINEET SARAN
body2015
DigiLaw.ai
JUDGMENT VINEET SARAN, J. 1. We have heard Sri K.J. Kamath, learned counsel for the appellant as well as learned HCGP for the respondent and perused the record. 2. This is a classic case of the officer antedating an order of revision only in order to overcome the limitation provided under Section 22A of the Karnataka Sales Tax Act, 1957 (for short ‘the KST Act’). Before going to merits of the case, we would like to state a few facts with regard to the passing of the revisional order, which is impugned in these appeals. 3. Penalty was imposed on the assessee by the Assessing Officer under Section 5A(3)(i) of the KST Act by an order dated 26.09.2005. The appellant-assessee challenged the said order in appeal and the Joint Commissioner of Commercial Taxes, vide its order dated 18.03.2006, allowed the appeal and set aside the penalty by a reasoned order passed under Section 20(5) of the KST Act. The respondent–Additional Commissioner of Commercial Taxes thereafter issued notice to the appellant-assessee dated 02.09.2009 (served on 19.09.2009) which was for revising the order dated 18.03.2006 passed under Section 22A of the KST Act. A reply to the said notice was filed by the appellant on 20.03.2010 which was received in the office of the respondent on 08.04.2010. The limitation for passing an order on a suo moto revision under Section 22A of the KST Act is provided under sub-section (4) of the said section, which is four years from the passing of the order sought to be revised. Such position is not disputed by the learned counsel for the parties. 4. What is noteworthy here is that the reply dated 20.03.2010 (received in the office of the respondent on 08.04.2010) has been referred to in the impugned order of the Additional Commissioner of Commercial Taxes dated 10.02.2010. The limitation of four year period from 18.03.2006 (which was the date of the order sought to be revised) was to expire on 17.03.2010. The copy of the order was received by the appellant on 21.09.2011. Noticing these facts, this Court had passed an order dated 16.10.2014, which is reproduced below: “The order of assessment was passed by the Prescribed Authority on 18.03.2006. The Revisional Authority initiated proceedings on 2.9.2009. The assessee filed his objections on 8.4.2010. The Revisional Authority passed the impugned order on 10.02.2010 referring to the objections filed on 8.4.2010.
Noticing these facts, this Court had passed an order dated 16.10.2014, which is reproduced below: “The order of assessment was passed by the Prescribed Authority on 18.03.2006. The Revisional Authority initiated proceedings on 2.9.2009. The assessee filed his objections on 8.4.2010. The Revisional Authority passed the impugned order on 10.02.2010 referring to the objections filed on 8.4.2010. However, the order is served on the assessee on 21.9.2011. There is an inordinate delay of 1 year 7 months. The learned Government Advocate to secure the records and submit when this order of 10.2.2010 was dispatched from the office of the Revisional Authority. Call next week.” 5. In response thereto the original record has been placed before us at the time of hearing. From the record it is apparent that the reply of the appellant-assessee dated 20.03.2010 was received in the office of the respondent on 08.04.2010 regarding which the office seal has also been put indicating the date of receipt of reply as 08.04.2010 and for this reason it has been mentioned in the impugned order that the appellant-assessee had filed its reply on 08.04.2010. The original record also shows that the order dated 10.02.2010 was despatched for service on the appellant-assessee on 15.09.2011, which was served on the assessee on 21.09.2011. 6. In these circumstances, the impugned order dated 10.02.2010, which refers to the reply of the assessee filed on 08.04.2010, cannot but be an antedated order passed only to circumvent the limitation of four years provided under sub-section (4) of Section 22A of the KST Act. Such being the position, we must deprecate the practice of the Officials in passing such antedated order and serving copies of the order after more than 1½ years of the date of the order. As such, on this ground alone the order dated 10.02.2010 passed by the respondent deserves to be quashed as the same has apparently been passed after the receipt of the reply of the assessee dated 08.04.2010, which would be beyond the period of limitation of four years from the passing of the order sought to be revised, but has been dated 10.02.2010, which would be within four years period. 7. Accordingly, these appeals stand allowed. The order dated 10.02.2010 passed by the respondent is quashed.
7. Accordingly, these appeals stand allowed. The order dated 10.02.2010 passed by the respondent is quashed. Considering the fact that it is clear to this Court that the impugned order is antedated, we allow these appeals with exemplary costs of Rs. 50,000/- to be deposited by the respondent before the Registrar of this Court within six weeks from today. In turn, the Registrar shall pay the said amount of costs to the appellant-assessee within three weeks thereafter. 8. It is made clear that the cost which is to be paid by the respondent may be recovered from the official who had passed the antedated order, after holding a due enquiry, in accordance with law. All pending applications stand consigned to file.