TMI Blog1991 (7) TMI 300X X X X Extracts X X X X X X X X Extracts X X X X ..... e, pursuant to this proposal notice the appellant filed his detailed explanation. On consideration of all that explanation, by order dated 15th April, 1991, under assessment No. 1/90-91, the assessment has been made as under: 'Order under section 28-AA(5) of the Act, 1957. The goods vehicle which failed to deliver the transit passes issued to the driver on 18th December, 1990, and consequently notice under section 28-AA(5) was issued and served on the owner of the vehicle on 17th February, 1991. The learned Advocate representing the goods vehicle has filed objections stating that the proposed penalty is too much and because it is lawful to levy, it cannot be levied. There should be reasonability in the levy of penalty. Considering t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered as if it were an arrear of land revenue and you will be liable to penalty as provided in section 13 of the Karnataka Sales Tax Act, 1957. Tax Penalty Total Total tax payable: 29,000 9,000 38,700 Total tax paid: Nil Nil Nil Balance due: 29,700 9,000 38,700 Date of assessment: 15-4-1991." It was at this stage the appellant approached this Court by way of W.P. No. 11739 of 1991. The one and the only contention urged before the learned single Judge was that there is no specific empowerment under section 28-AAW enabling the Commercial Tax Officer (Intelligence), Bellary, to issue notice, much less to make assessment; the order was without jurisdiction. 2.. Before the learned single Judge on behalf of the Revenue, Notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In sub-section (1) it states as under: "(1) If the State Government or the Commissioner consider it necessary that with a view to prevent or check evasion of tax under this Act in any place or places in the State, it is necessary so to do, they may, by notification, direct the establishment of a check post or the erection of a barrier, or both, at such place or places as may be notified." Sub-section (2) is omitted as not necessary for our purpose. Now we come to sub-section (3) which states as under: "(3) At every check post or barrier, or at any other place when so required by any officer empowered by the State Government in this behalf, the driver or any other person in charge of a goods vehicle or boat shall stop the vehicle or bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1957 (Karnataka Act 25 of 1957) the Government of Karnataka hereby empowers the officers specified below to exercise the powers under the said sub-section at any places within the State: Sl. No. Designation (1) Deputy Commissioner of Commercial Taxes (Intelligence), East Zone, Bellary. (2) Deputy Commissioner of Commercial Taxes (Intelligence), East Zone, Mangalore. (3) Assistant Commissioner of Commercial Taxes (Intelligence), West Zone, Mangalore. (4) Assistant Commissioner of Commercial Taxes (Intelligence), East Zone, Bellary. (5) Commercial Tax Officers (Intelligence), West Zone, Mangalore. (6) Commercial Tax Officer, East Zone, Bellary. (7) Assistant Commercial Tax Officers, West Zone, Mangalore. (8) Assistant C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be prescribed from the officer-in-charge of the first check post or barrier after his entry into the State." Then comes the important sub-section (4) which we extract below: "(4) If the driver or any other person in-charge of the vehicle does not comply with sub-section (2), it shall be presumed that the goods carried thereby have been sold within the State by the owner of the vehicle and shall, notwithstanding anything contained in sub-section (5) of section 5, be assessed to tax by the officer empowered in this behalf in the prescribed manner." 7.. A careful reading of the above sub-section will clearly disclose that this power is independent of the charging section, namely, section 5(5). That is clear by reason of non obstante cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity for the purpose of sub-section (4) of section 28-AA and this rule shall be the officer-in-charge of the first check post or barrier issuing the transit pass under sub-section (1) of said section." Thus therefore the officer who is enabled to issue the pass under section 28-AA(1) is the officer who could validly assess under section 28-AA(4). At this stage, we may also refer to rule 23F. Sub-rule (1) reads as follows: "23F. The transit of goods by road through the State and issue of transit pass.-(1) The driver or the person in-charge of a goods vehicle shall, in order to obtain a pass under section 28-AA, submit an application, in triplicate, in form 39-AA to the officer-in-charge of the check post or barrier, if any, established ne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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