9911796707
TMI Blog2009 (10) TMI 860X X X X Extracts X X X X X X X X Extracts X X X X ..... mmercial Taxes (Audit)-35, DVO-3, 7th Floor, VTK-1 Gandhinagar, Bangalore, to be precise, took a chance to pass a best judgment assessment order in respect of the appellant for the periods April, May and June of 2005 determining the tax liability of the appellant for these periods, in terms of the order dated March 29, 2008. The appellant, being aggrieved by this order, had preferred a first appeal under section 62 of the Act to the Joint Commissioner of Commercial Taxes (Appeals) I, Bangalore, and met with success as the Joint Commissioner opined that the officer who had passed the best judgment assessment order in terms of sub-section (7) of section 38 was not competent to do so having not been authorized by the Commissioner of Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent and the learned Government advocate was also directed to take notice. The respondent is served and represented by Miss Geetha Menon, learned Additional Government Advocate. With the consent of Sri Shankare Gowda, learned counsel for the appellant and Miss Geetha Menon, learned Additional Government Advocate, the matters which have come up for admission are now taken up for hearing, as a very short and crisp point arises for examination in these appeals. Sri Shankare Gowda, the learned counsel for the appellant, in the first instance, would urge a technical point that the assessing officer lacked jurisdiction to pass an order in terms of sub-section (7) of section 38 of the Act and was not competent to make the order and has dra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aler at all, obviously, no returns would have been filed, no scrutiny would have been there and if the appellant was a dealer which was otherwise liable to pay tax and was also liable, to get itself registered as a dealer under the Act, there is inevitably violation of the statutory provisions, non-registration, non-filing, non-payment of tax, etc., on the part of the appellant. Though there may be proof of violation of statutory provisions committed by any person, who otherwise would become a dealer and who is required to comply with the statutory provisions, and the statutory authorities, viz., the original authority, the Joint Commissioner and the Deputy Commissioner, who are all functioning under the provisions of the Act, nevertheless ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red as a dealer. Therefore, the learned Additional Government Advocate who had been directed to place the original records from the office of the Commissioner of Commercial Taxes indicating the very order, also has placed before the court, the Additional Commissioner's investigation report to verify the very order passed by the Commissioner. However, what is placed before the court is the records from the office of the Additional Commissioner of Commercial Taxes containing a xerox copy of the order sheet of the Commissioner of Commercial Taxes and our attention is drawn to the notes figuring at item Nos. 14 and 15 occurring at pages 5 and 6 and here again, what is pointed out to us is some proposal which appears to have been communicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... himself but what is placed before the court is some proposal by the Deputy Commissioner and agreement approval of the Commissioner and that too, for the purpose of carrying on audit in respect of the appellant-dealer for the period April 1, 2005 onwards. To say the least, the records which are placed before the court are only inadequate to establish there was compliance with the requirements of the statutory provisions of sub-section (7) of section 38 and what surprises us is that such records are sought to be placed before the court as though it is one such record which can pass the test of statutory provisions quoted above. The order passed by the assessing authority cannot be supported in law in the instant case for the reason that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
