TMI Blog2012 (1) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... e file to the Deputy Commissioner, who after following the procedure prescribed issued proceedings under section 35(1) of the Act setting aside the assessment with direction to the assessing officer to revise the assessment to bring to tax, turnover, if any, escaped assessment based on the findings and data avail able in the crime file for the very same year. The petitioner challenged the Deputy Commissioner s order before the Tribunal by raising grounds of limitation and violation of natural justice. However, Tribunal dismissed the appeal, against which this revision is filed under section 41 of the KGST Act read with rule 41(1) of the KGST Rules. We have heard Advocate Sri procedure prescribed under the law has set aside the order passed by the appellate authority and upheld the order passed by the assessing authority. In the circumstances, we find that there is no infirmity or irregularity in the said order. Hence, the substantial questions of law framed in the appeal are held against the assessee. Further, the honourable Supreme Court in a judgment reported in [2007] 8 VST 373 (SC); [2007] 6 SCC 365, in the case of (A. P. Products v. State of A. P.) has clearly held that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of this Act, may pass such order thereon as he thinks fit. (2) The Deputy Commissioner shall not pass any order under sub-section (1) if,- (a) the time for appeal against the order has not expired; (b) the order has been made the subject of an appeal to the Appellate Assistant Commissioner or the Appellate Tribunal or of a revision in the High Court; or (c) more than four years have expired after the passing of the order referred to therein. It is the settled position by a series of decisions of this court that turn over escaped from assessment or turnover of any goods assessed at less than the rate applicable could be made up not only in a reassessment authorised to be completed by the assessing officer under section 19(1), but also through a proceedings to be initiated by the Deputy Commissioner under section 35 of the Act. In other words, the settled position of law is that tax evasion could be prevented through reassessment made either by the assessing officer himself or under direction of a higher authority like the Deputy Commissioner who is given supervisory powers under section 35 of the Act. Obviously under section 35, the Deputy Commissioner inter feres wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessing officers at different centres are subject to his jurisdiction. Therefore, according to him, four years time is consciously provided by the Legislature for him to have the assessments of all the subordinate officers examined by him and if required, to make correction to avoid loss of revenue. According to the Government Pleader, limitation provided under section 19(1) for revision of assessment by the assessing officer and the limitation provided to the Deputy Commissioner are entirely different, though both authorities exercise the powers to prevent evasion of tax. The contention raised by the counsel for the petitioner is that the Deputy Commissioner should exercise powers subject to other provisions means that he has to abide by the limitation provided under section 19(1), if the proceedings initiated under section 35 is one for bringing to tax escaped turnover or turnover assessed at less than the rate applicable. We are unable to accept this contention because when the statute authorises an act to be done by an authority within the time specifically provided therein, he is free to exercise such powers within such time. In this case admittedly the Deputy Commissioner set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment under section 19(1) by the assessing officer and by the Deputy Commissioner to order revision of assessment under section 35 are entirely different and therefore, the petitioner s contention that limitation for making turnover escaping assessment applicable to the Deputy Commissioner under section 35 is not the one provided therein, but the limitation provided to the assessing officer under section 19(1) is against the legislative scheme. We, therefore, reject this contention. The next contention raised by counsel for the petitioner is that the Deputy Commissioner passed the order under section 35 without issuing notice and without giving opportunity to the petitioner which is the mandatory requirement of sub-section (3) of section 35. Admittedly the petitioner s office was closed and, therefore, notice was served through affixture. The petitioner s contention is that his residential address was known to the Department and so much so, notice should have been sent to him in the home address. However, the petitioner has no case that he has informed closure of business and intimated residential address. There is nothing to indicate that the Deputy Commissioner has taken note ..... X X X X Extracts X X X X X X X X Extracts X X X X
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