TMI Blog2010 (3) TMI 1046X X X X Extracts X X X X X X X X Extracts X X X X ..... ules. The e-mail print out produced by the State at annexure R1 does not satisfy the requirements of section 39(1) read with rule 46 of the Rules. If that is so, the writ petition requires to be allowed only on this short question. Accordingly, the writ petition is allowed. The impugned annexures D and E are quashed. - Writ Petition Nos. 60078-60081 of 2010 - - - Dated:- 19-3-2010 - SUBHASH B. ADI, J. For the Appellant : K.G. Raghavan Senior Advocate for Raghavendra Rao For the Respondent : Dinesh Rao, Government Advocate, ORDER:- SUBHASH B. ADI J. The petitioners in these writ petitions have called in question the orders dated December 23, 2009 and January 4, 2010 produced at annexures D and E passed by the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a. It is stated that for the period between 2005-06 to 2008-09 tax of ₹ 21,97,806 was imposed and a notice was issued as per annexure A for which the petitioners had given reply as per annexure B. The petitioner had alleged that the Commissioner of the Commercial Tax has not authorised the officer to re-assess the tax under section 39 of the Act. In this regard, the petitioner had called upon the Commissioner of Commercial Taxes to give certain clarifications. The Commissioner had issued clarification dated June 9, 2006 which is produced at annexure C for which the petitioners had sent another reply dated December 22, 2009. Thereafter the impugned demands were passed. 3. Amongst other contentions, Sri Raghavan, learned senior couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf registered as a dealer should be precise and for the specific purpose and can and should only be passed by the Commissioner 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. 17. 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y authorised the officer to reassess the tax in terms of section 39(1) of the Act read with rule 46 of the Rules thereunder? 8. Before we consider the contentions of the learned counsel for the parties, it is better to refer to the provisions of section 39(1) which reads as under: 39. Reassessment of tax. (1) Where the prescribed authority has grounds to believe that any return furnished which is deemed as assessed (or) any assessment issued under section 38 understates the correct tax liability of the dealer, it, (a) may, based on any information available, re-assess, to the best of its judgment, the additional tax payable (and also impose any penalty under sub-section (2) (or sub-section (6) of section 72 and demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the officer. The authorised officer must be a person competent to reassess the tax in consonance with the provisions of section 39. 11. Hence without going into the merits of the case as regard to whether the petitioner has really evaded the tax or not, if the person who has re-assessed the tax is not the authorised officer, then the assessment made by him becomes one without authority of law. The provisions of the tax Act require to be construed strictly. 12. A Division Bench of this court while considering the identical provision, has observed that, if the law requires that certain things to be done in a particular manner, there is no reason for the authority to act in contravention of the same. If the Commissioner is empowered u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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