TMI Blog2010 (6) TMI 677X X X X Extracts X X X X X X X X Extracts X X X X ..... gh to complete the escaped assessment of turnover under section 25(1) of the Kerala Value Added Tax Act, 2003 inviting objections, if any, and also mentioning about the right to be heard so as to satisfy the requirement under the first proviso to the said provision, is the point of dispute. The petitioner is challenging the correctness and sustainability of exhibit P3 order passed by the respondent under section 25(1) of the KVAT Act, whereby huge liability is stated as mulcted on the shoulders of the petitioner ; without giving an opportunity of hearing which is contrary to the statutory prescription under section 25(1) of the KVAT Act and hence is under challenge in this writ petition. The sequence of events shows that the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for any reason the whole or any part of the turnover of business of a dealer has escaped assessment to tax in any year (or return period) or has been under-assessed or has been assessed at a rate lower than the rate at which it is assessable or any deduction has been wrongly made therefrom, or where any (input tax or special rebate) credit has been wrongly availed of, the assessing authority may, at any time within five years from the last date of the year to which the return relates, proceed to determine, to the best of its judgment, the turnover which has escaped assessment to tax or has been under-assessed or has been assessed at a rate lower than the rate at which it is assessable or the deduction in respect of which has been wrongly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the notice ; further mentioning that the assessee was at liberty to have an opportunity of being heard on any day in the meanwhile. It is not disputed that exhibit P1 notice, though dated January 7, 2010 was served upon the petitioner only on January 20, 2010. It is further revealed from para 7 of the counter-affidavit that the petitioner filed a letter dated February 3, 2010 seeking for an adjournment till February 17, 2010 and it was accordingly, that the objection dated February 10, 2010 was filed before the respondent on February 17, 2010 (referred to as the second item in exhibit P3). It is contended from the part of the respondent that, till date, the assessee had not turned up before the respondent for personal hearing, despit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bit P1 notice mentioning as to the right to file objection and also as to the right for hearing is rather a composite one ; which by itself may not serve the purpose always. The requirement of issuing notice on the dealer as stipulated under section 25(1) of the KVAT Act is the pre-requisite to enable the assessing authority to proceed to determine the tax to the best of its judgment. On receipt of the notice, the assessee is at liberty to explain the position and if the explanation is satisfactory, the assessing authority may not proceed further and the matter may be closed. If the explanation is not satisfactory, then the question comes, as to the necessity to pass an assessment under sub-section (1) of section 25. It is at this ju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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