TMI Blog2018 (12) TMI 1082X X X X Extracts X X X X X X X X Extracts X X X X ..... in the absence of receipt of fresh materials. Time limitation - Held that:- 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. The issues decided herein cannot be reopened in the quantum appeal if at all filed - revision rejected. - S.T.Rev.Nos.4 And 5 of 2018 - - - Dated:- 26-3-2018 - Mr. Justice K.Vinod Chandran And Mr. Justice Ashok Menon For The Petitioner : Advs. Sri. Liju.V. Stephen, Smt. Indu Susan Jacob For The Respondent : R1 R2 By Senior Government Pleader Sri.Mohammed Rafiq ORDER VINOD CHANDRAN, J: The revision petitioner-assessee is concerned with two assessment years, ie: 2003-04 and 2004-05. The assessee was dealing with non-stick cookware and aluminum utensils. The assessee filed returns for the aforesaid years and for reason of the Kerala General Sales Tax ( K.G.S.T. for short) having ceased to have effect with 2004-05, the assessments were completed by the Fast ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aised, one on limitation, the other on there being no fresh material for reopening and then the question of a single officer having reopened the assessment. The Tribunal only dealt with the issue of single officer having reopened an assessment, completed by a team of four officers. The Tribunal set aside the order, but however observed that there is still liberty reserved for the Department to reopen the assessment. We are not asked to deal with the question of whether the reopening was proper by the Assessing Officer, since the Tribunal has already dealt with it and held in favour of the assessee and there is no revision by the State. We also concur with the opinion of the Tribunal. 4. The Tribunal however did not consider the question as to whether the Commissioner has the power to permit reopening of the assessment beyond the limitation period. The question also arises; if the Commissioner is so conferred with power, whether it can be reopened without notice to the petitioner. The assessee has not questioned the power of the Commissioner to permit reopening, without notice, but all the same, the question does arise. The Tribunal also did not consider the question on limitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n assessment year shall be clubbed with assessment file and taken up for disposal; (d) No assessment completed by the teams shall be re-opened unless there is fresh receipt of materials pertaining to tax evasion: Provided that the assessment may be re-opened with the prior permission of the Commissioner; (e) The assessment shall be completed fairly by a summary proceeding; (f) the team shall be competent to offer reasonable concessions after recording the reasons thereof on the estimation of suppression of turnover on account of any offences detected against the dealer, and also on the interest payable up to a maximum of fifty per cent of that payable, in cases where the dealer offers immediate payment of the dues; (g) The hearings shall be open to public. The date and venue of the sitting shall be intimated in advance to the dealers concerned. Information shall also be published through the local media; (h) No adjournment in the cases listed at a session shall be permitted except under exceptional circumstances; (i) If a dealer fails to appear, the assessment shall be finalised 'ex-parte' following the principles of natural justice; (3) All assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factory, claimed overtime wages at double the normal rates as per the Factories Act, 1948. The claim was resisted by the management on the contention that the claimants are not workers. The provision examined; Section 70 of the Bombay Shops and Commercial Establishments Act [for brevity BS CE Act ], made inapplicable the provisions of BS CE Act to a factory and the provisions of the Factories Act, 1948 was held to be applicable notwithstanding anything contained in that Act to all persons employed in the factory. This was held to have the effect of enlarging the scope of the Factories Act to all persons employed, irrespective of whether they are 'workmen' or not in AIR 1959 SC 1226 [B.P.Hira Vs.C.M.Pradhan]. A defense was taken that the State Government was empowered under Section 64 of the Factories Act to exempt employees, from the application of Section 59. By Rule 100 the claimants came within the exempted category. The non obstante clause, in Section 70, as found by the Supreme Court, gave overriding force as against the contrary provisions in the same statute or another. Here, the non-obstante clause specifically makes inapplicable all the other provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided for reopening, without any limitation, when there is receipt of fresh materials and when there is permission from the Commissioner. A provision for limitation would definitely be in conflict with the scheme of Section 17D. 13. The further argument is based on Mohammed Kunju which dealt with the provisions of Section 17(6) to Section 17(9) and Section 17A which again would not be applicable in the scheme of Section 17D. In 2003 the legal heirs of a deceased dealer received notices for completing the assessments of the years 1974-75 and 1980-81; which were respectively remanded for fresh consideration by the First Appellate Authority, by orders of 1982 and 1989. The legal heirs defended the notice on grounds of limitation, pointing out insertion of sub-sections (6) to (9) in Section 17. Sub-section (8) mandate completion of remanded assessments within four years of the order of remand. The Department relied on Section 17A, which was found to have not provided for any fresh limitation other than that found in sub-section (6) (8) of Section 17, but only provided for validation of all assessments completed by virtue of Section (6), which brought in a period of limita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner in 2010. The reopening was proposed to be made in the very same year and the final order was passed immediately thereafter. There could hence be no ground of unreasonable delay found to interfere with the reopening carried out. 16. In this context, we have to notice that the reopening was made specifically on the permission granted by the Commissioner, which was on 08-12-2010. Admittedly, there is no reference to the permission of the Commissioner in Annexure A. The assessee asserts that the order of the Commissioner was produced at the time of hearing before the Tribunal and never before in any of the proceedings initiated by the assessee. The learned Senior Government Pleader also submits that the order produced before the Tribunal was an authenticated copy of the permission. An authenticated copy or otherwise, we are more concerned with the same having not been produced before any of the authorities or even referred to in the notice issued or in the order finalized as per Annexure A. The learned Senior Government Pleader would point out that the only proceeding from an order under Section 17D is directly to the Tribunal. The Counsel for the assessee points ou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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