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TMI Blog2018 (12) TMI 1082X X X X Extracts X X X X X X X X Extracts X X X X ..... he tax in accordance with the demand raised. 2. Later, by Annexure-A produced in both the Revisions, there was a reopening of assessments made and fresh orders passed on 26-02-2011 for both the years. The reopening was for reason of the assessee having returned only 4% tax, for the turnover of non-stick cookware dealt with by the assessee; which was levied tax @ 12%. The assessee had a contention that the aluminum household utensils dealt with by the assessee was assessable only @ 4% as per the judgments of this Court, prior to a Full Bench decision. 2008 (2) KLT 448 (FB) [Supply House v. State of Kerala] found that only household utensils made of aluminum or aluminum alloys fall under Entry 5 of the First Schedule to the K.G.S.T. Act. Non-stick cookware made of aluminum was found to be home appliances, classifiable under Entry 104 (116 in the subject assessment year) exigible @ 12%. In such circumstances, the assessee cannot take a contention that he had been collecting tax at the lower rate on the basis of the earlier judgments. Especially going by the principle that hardship to the assessee, for not having collected tax at the higher rate, by reason of a belief harboured that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as right in having ignored the provisions of limitation under Section 19 and the amendments made to Section 17 as per the Finance Act, 2010 on 28-07-2010 ? (3) Whether the Commissioner could have reopened the assessment under Section 17D, without notice to the petitioner and ought not the Tribunal have considered the question? 5. On the question of limitation, the learned Counsel for the petitioner would contend that Section 17D does not in any manner efface the limitation provided under Section 19. Even if Section 17D is found to be not controlled by Section 19, the amendments on 28-07-2010, to Section 17, would bring in a limitation for reopening of assessments. The learned Counsel would rely on the decision of a learned Single Judge reported in 2008 (4) KLT 157 [Mohammed Kunju v. Asst. Commissioner of Commercial Taxes] as also the decision of the Hon'ble Supreme Court reported in (2016) 4 SCC 769 [State of Punjab v. M/s Shreyans Indus Ltd.] The learned Government Pleader per contra would rely on the decision reported in 2009 (4) KHC 819 [Hindustan Petroleum Corporation v. Assistant Commissioner] and an unreported decision of a learned Single Judge in W.P.(C) No.19613/2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... withstanding anything contained in any other provisions of this Act, appeals against the assessment orders issued under fast track method shall lie within forty five days to the Sales Tax Appellate Tribunal and no such appeal shall lie unless the dealer has paid the entire tax amount." 7. Clause (d) of sub-section (2) of Section 17D provides for reopening of assessment, but however only when there is fresh receipt of materials pertaining to tax evasion. In the present case, there is no fresh material obtained by the Department and the assessment was reopened only on the finding that there was a mistake in the return in so far as showing the tax leviable on non-stick cookware at 4%, as against the actual levy at 12%. We notice that the proviso to clause (d) enables reopening with the prior permission of the Commissioner, in which event the issue of fresh receipt of materials would not at all arise. Hence, when there is an order of the Commissioner definitely there could be a reopening made even in the absence of receipt of fresh materials. 8. Now, we will examine the contention raised by the assessee of the proceedings being hit by limitation. We have to emphasize that Section 17D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in favour of the revenue. 10. Apposite here, would be reference to Hindustan Petroleum Corporation, where the Division Bench found that Section 17D begins with a non-obstante clause which sets it free from any other law or the other provisions of the KGST Act, in so far as the assessment pending under the Act as on the 1st of April, 2007. In such circumstances, there is no question of there being a limitation in so far as a reopening is concerned, either by receipt of fresh materials or by permission obtained from the Commissioner. Section 17D is a code by itself and is not controlled by the provisions of the KGST Act, which are in conflict with the scheme as envisaged therein. 11. The learned Counsel for the assessee then would rely on the first proviso to Section 17 introduced as per the amendment on 28-07-2010. The proviso is as follows: (i) in sub-section (6), for the fourth proviso, the following proviso shall be substituted, namely:- "Provided also that the assessment relating to the st st March, 2011: Provided further that in cases where any assessment completed under this Act has been reopened with the permission of the Commissioner,m the time limit mentioned in se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;s Full Bench in 2006 KLT 72 (F.B) [Geo Sea Foods Vs. Addl. STO] upheld the assessments so completed. This has no application here. 14. There is another contention raised by the learned Counsel based on M/s Shreyans Indus Ltd. Therein the issue was with respect to the Statute prescribing an outer limit of three years to complete the assessment. There was also a provision enabling the Commissioner to extend the period of limitation. The assessments were not completed within the period of limitation. Notices were issued after limitation was over and objections were raised specifically on the question of limitation. When such objections were received, the Assessing Officer approached the Commissioner and obtained a permission to extend the period of limitation. The Hon'ble Supreme Court found that if at all an extension is permissible, it has to be done before the period of limitation is over. When the limitation is over, the assessments are barred and there is no question of an enabling provision being resorted to, for extending the time. When the period of limitation has expired then there cannot be a fresh life given to such assessments. The above proposition also does not ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Of Kerala Vs. Abhilash T. Mathew] held that even when there is an enabling provision, permitting assessment or reassessment on orders of the Commissioner or any assessing authority, extending the period of limitation; necessarily notice has to be issued to the assessee. In this case, we find that no notice has been issued to the assessee. This is not a ground the assessee raised before the Tribunal because the assessee was confronted with the permission only at the hearing of the appeal. We however notice that if a remand is now made; the assessment under the KGST Act would be kept alive after more than a a decade from its ceasing to have effect. There is also considerable delay in the filing of the appeal before the Tribunal, occasioned from the part of the assessee, of four years. Then, three years the appeal was pending before the Tribunal. We are now eight years from the date of reopening; four of which elapsed due to the wrong forum approached by the assessee and three lost at the Tribunal. Hence we are only one year from the reopening which is a reasonable period within which a reopening can be permitted as directed by the Tribunal. Even if we set aside the order of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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