TMI Blog2016 (9) TMI 1162X X X X Extracts X X X X X X X X Extracts X X X X ..... rent view in the matter despite the direction issued by the appellate authority? Held that: - There is no doubt about the jurisdiction of the assessing officer in a case where it is noticed that part of the turn over of the business of a dealer has escaped assessment to tax in any year or return period or has been under assessed or has been assessed at a rate lower than the rate at which it is assessable or any deduction has been wrongly made therefrom or where any input tax or special rebate credit has been wrongly availed of, the assessing authority may, at any time within five years from the last date of the year to which the return relates, proceed to determine, to the best of its judgment, the turnover which has escaped assessment t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... THE PETITIONER : ADVS.SRI.S.SURESH BABU (CHERUNNIYOOR) SRI.AJI V.DEV FOR THE RESPONDENT : GOVERNMENT PLEADER SMT.LILLY.K.T JUDGMENT This writ petition has been filed challenging Ext.P10, an order passed by the Commercial Tax Officer in respect of the assessment year 2011-2012. 2. The short facts involved in the writ petition would disclose that the petitioner was served with notice dated 18/10/2013 under Section 25 of the Kerala Value Added Tax Act, 2003 (hereinafter referred to as 'the Act') proposing to assess the petitioner to a total taxable turnover of ₹ 10,86,23,456/- by adding the discount of ₹ 88,49,785/- which the petitioner received from the suppliers. An apprehension was expressed that the ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the petitioner is that without considering the matter, as directed in Ext.P7, notice under Section 25(1) of the Act was issued on 10/12/2015 against which, the petitioner preferred an objection at Ext.P9 and the assessing authority, thereafter reW. opened the entire assessment and passed Ext.P10 order taking a totally contrary view as stated in Ext.P5 order, which had become final by virtue of the merger on account of the appellate order, Ext.P7. 3. The contention urged by the petitioner is three fold. One is that the officer himself had arrived at a conclusion in Ext.P5 order that the purchase value is less the discount received. Hence re-opening of the said assessment on that ground was improper. Another contention urged is that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and therefore there is no reason for this Court to interfere in the matter. Reliance is also placed on Tenny Devassy v. State of Kerala [(2015) 23 KTR 586 (Ker)] wherein a Division Bench of this Court held that reimbursement of price received by a dealer is liable to be included in his turnover whereas the discount allowed to customer, and shown separately in the tax invoice, is liable to be excluded from the turnover. It is therefore contended that the officer was justified in taking such a view despite the fact that in an earlier occasion, a different view was taken in the matter. 5. The first question to be considered in the writ petition is whether there is any justification on the part of the assessing authority in having take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he tax payable on such turnover or disallow the input tax or special rebate credit wrongly availed of, after issuing a notice on the dealer and after making such enquiry as it may consider necessary: Provided that before making an assessment under this sub-section the dealer shall be given a reasonable opportunity of being heard: Provided further that where the escapement is due to the application of incorrect rate of tax, no assessment under this sub-section shall be made where the dealer files revised return and pays the tax which has escaped assessment along with interest under sub-section (5) of Section 31 and thrice the interest as settlement fee. Provided also that the assessments pending as on 31st March, 2013 under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is not open for the Officer considering the same again to have a different view. Revenue authorities also had a right of appeal and no such opportunity had been availed of at the relevant time. 7. In the said circumstances, I am of the view that the question whether the discount has to be added to the turn over was not a matter which ought to have been taken up afresh especially when no appeal had been filed by the revenue authorities against Ext.P5 order. In the light of the above discussion, it is therefore clear that the assessing officer was not justified in re-opening the assessment already made as far as the addition of discount to the turn over is concerned. What was to be considered by the assessing officer was only whether ..... X X X X Extracts X X X X X X X X Extracts X X X X
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