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THE COMMERCIAL TAX OFFICER - I, ALUVA AND OTHERS Versus M/s. RED BULL INDIA (P) LTD

2016 (9) TMI 1008 - KERALA HIGH COURT

Review of order passed by assessing authority - validity of pre-assessment notice - completion of assessment - imposition of penalty - the KVAT Act - application for clarification - Held that: - pursuant to the judgment of the Court dated 23.11.2015, the authority for clarification proceeded to take note of the assessment orders passed by the assessing authority and pass an order stating that, in view of the assessment orders already passed, he was not empowered to pass an order on merits in the .....

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t was under those circumstances that the judgment in W.P.(C).No.3579 of 2016 was passed quashing the assessment orders, and the order passed by the authority for clarification, and directing the latter to pass a fresh order on the application for clarification preferred by the petitioner in the writ petition on merits, and a further direction to the assessing authority to pass fresh assessment orders only after obtaining the order of the authority for clarification - in the absence of a timely r .....

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ADV. SRI.G.KRISHNAKUMAR ORDER As both these review petitions involve the same issue they are taken up for consideration together and disposed by this common judgment. R.P.No. 129 of 2016 is preferred against the judgment dated 02.02.2016 in W.P.(C).No.3579 of 2016. R.P.No.304 of 2016 is preferred against the judgment dated 23.11.2015 in W.P.(C). No.35373 of 2015. 2. The petitioner in both the aforementioned writ petitions is a dealer in energy drinks under the brand name of Red Bull . Aggrieved .....

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the petitioner, before the assessing authority considered the assessments of the petitioner pursuant to the pre-assessment notices that had been issued. On finding that an adjudication of the matter by the assessing authority would be a futile exercise especially when the application for clarification was pending before the authority for clarification, this Court disposed W.P.(C).No.35373 of 2015 by directing the authority for clarification to consider and pass orders on the clarification petit .....

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sed an order dated 25.01.2016 wherein it found that inasmuch as the assessing authority had already passed assessment orders dated 18.11.2015 in relation to the petitioner for the assessment year 2014-2015, he could not consider the application for clarification on merits. On receiving the order dated 25.01.2016 of the authority for clarification, the petitioner approached this Court through W.P.(C).No.3579 of 2016 challenging the said order, as also the assessment orders passed by the assessing .....

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sing the judgment in W.P.(C).No.35373 of 2015 was to ensure that an adjudication would follow the order passed by the authority for clarification under the KVAT Act, and the said object had not materialised through the passing of the assessment orders by the assessing authority and the impugned order of the authority for clarification, both the assessment orders, as well as the impugned order passed by the authority for clarification, were quashed and the authority for clarification was directed .....

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.P.No.129 of 2016 was preferred against the judgment in W.P.(C).No.3579 of 2016. In the review petition, the review petitioner, who is the respondent in the writ petition seeks a review of the judgment of this Court on the contention that the orders of assessment passed by the assessing authority for the assessment year 2014-2015 had both been passed by the assessing authority on 18.11.2015 and were served on the writ petitioner on 23.11.2015, the date of the judgment of this Court in W.P.(C).No .....

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Section 94 was not empowered to pass orders on an application for clarification, as provided in Section 94 (4) of the KVAT Act. It is stated that, the judgment of this Court that quashes the assessment orders passed by the assessing authority, as also the order of the authority for clarification that holds that he could not consider the application of the writ petitioner on merits on account of the orders already passed by the assessing authority, needed to be reviewed taking into account the f .....

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der on the clarification petition, and a separate direction given to the assessing authority to await the orders of the authority for clarification before proceeding further with the assessment in relation to the petitioner. Faced with this query from the Bench, the learned Government Pleader sought a short adjournment and immediately thereafter filed R.P.No.304 of 2016 seeking to review the judgment in W.P.(C).No.35373 of 2015. It is under the aforesaid circumstances that both these review peti .....

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essment orders were not communicated to the petitioner till much after the date of judgment in W.P.(C).No.35373 of 2015. The learned Government Pleader appearing for the review petitioners has also relied on similar material to show that the assessment orders were communicated to the office of the petitioner before the date on which W.P.(C).No.35373 of 2015 was filed by the writ petitioner. While there is a factual dispute with regard to the date of service of the assessment orders dated 18.11.2 .....

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e said judgment by the authority for clarification. What happened in the instant cases, however, is that pursuant to the judgment of this Court dated 23.11.2015, the authority for clarification proceeded to take note of the assessment orders passed by the assessing authority and pass an order stating that, in view of the assessment orders already passed, he was not empowered to pass an order on merits in the application for clarification filed by the writ petitioner. It is also relevant to note .....

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