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2008 (5) TMI 619 - ORISSA HIGH COURTWhether the original assessment order dated March 23, 2005 passed by the assessing officer merged with the appellate order dated December 26, 2005 by operation of doctrine of merger? Whether the appellate authorities in exercise of their power to enhance the assessment, can take into consideration the fresh or new material which was not before the assessing officer but has come to light only after completion of the assessment while disposing of the appeal arising out of the original assessment? Whether by exercising power of revision the Commissioner can consider any new or fresh material which was not before the assessing officer, but came to light only after completion of the assessment? Held that:- The original assessment order passed by the assessing officer merged with the appellate order by application of doctrine of merger. In spite of that the assessing officer assumes jurisdiction under rule 12(8) of the CST (O) Rules to assess the turnover escaped assessment from the original assessment by issuing notice under that rule on the basis of new/fresh material which was not the subject-matter in the original assessment, but comes to light only after completion of original assessment. The appellate authorities while disposing of the appeal arising out of an assessment order cannot take into consideration any fresh or new material which was not before the assessing officer but subsequently comes to light after completion of the assessment for the purpose of enhancement of the assessment. We are of the considered view that by exercising power of revision, the Commissioner cannot consider any new or fresh material which was not before the assessing officer and comes to light only after passing of the original assessment order. In the present case, the challenge is not only to the notice issued under rule 12(8) of the CST (O) Rules but also to the order of assessment made on the said notice. Since the assessment had already been made, challenge to the legality of the notice is really without any relevance.
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