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TMI Blog2014 (12) TMI 1337X X X X Extracts X X X X X X X X Extracts X X X X ..... t years 2006-2007, 2007-2008, 2008-2009, 2009-2010 and 2010-2011. Subsequently, the assessing officer found that the highest turn over conceded by assessee which lead to the compounding allowed for the assessment year 2006-2007 was wrong. 3. This factual finding lead to initiation of proceedings under Section 25(1) of the Kerala Value Added Tax Act. Accordingly assessment under Section 25 was completed for the aforesaid assessment years by order dated 28.10.2011. Appeals filed by the assessee before the first appellate authority were dismissed. These orders were again challenged before the Tribunal and the Tribunal by a common order,allowed the appeals following the judgment of this Court in Zodiac Regency (M/s.) v. Commissioner of Commerc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r passed by the assessing authority under Section 25 of the KVAT Act. However we make it clear that the assessing authority shall be at liberty to rectify or otherwise cure any defect or anomaly in the compounding proceedings already passed so as to ensure compliance with the statute itself. The appeal is therefore allowed." 6. However, having considered the submissions made by both sides, we are unable to endorse the view taken by the Tribunal. This is mainly for the reason that the Tribunal has concluded the issues without adverting to the principles laid down by the this Court in M/S Joy Alukkas Traders (I) Pvt. Ltd. v. State of Kerala [2010 (1) KHC844 and judgment in STR922011. In the case of Joy Alukkas (supra), compounding was allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on which the assessment has to be made by the assessing officer under Section 17(1) or 17 (3) of the Act. It is clear from Form No.21A and Form No.22 issued under Rule 30 that the payment of tax based on the approval and the demand notice are only provisional and the same has to find acceptance in a regular assessment. In other words, even if there is a mistake or omission in the approval granted by the assessing officer, it is within his powers to modify such order and demand the tax escaped under the compounding scheme in regular assessment or later by revising assessment under Section 19(1). The power of the Deputy Commissioner under Section 35, of course, can be exercised in respect of any order passed by the assessing officer which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no dispute that the order issued by the Deputy Commissioner under Section 35 is within the time for revision of regular assessment passed by the assessing officer under Section 17(3). So much so, the Tribunal rightly rejected the assessee's challenge against the order of the Deputy Commissioner on the ground of limitation. 7. Following this judgment, STR9211 was disposed of and paragraph 1 of this judgment reads thus: Question raised is whether reassessment completed under Section 19(1) of the Kerala General Sales Tax Act (hereinafter referred to as the Act for short) was rightly held to be invalid by the Tribunal for the reason that the original assessment was based on compounding. This issue stands decided in favour of the Revenue vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 011. 10. Relying on the judgment of this Court in Prakash Jewellery and another v. State of Kerala [2004 (12) KTR543, counsel for the respondent assessee contended that even if the assessment is to be revised, the same can be only in terms of the powers under Section 66 of the KVAT Act and an assessment under Section 25 is illegal. We are unable to agree. First of all, the facts of the case in Prakash Jewellery (supra) show that after accepting the application for compounding and permitting remittance of tax on that basis, change had occurred on account of the Finance Act that was introduced. Subsequently it was in that context that this Court held that the power of the assessing officer is under Section 35 of the KGST Act and that it shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entire turn over of the assessee has to be treated as escaped turn over. In such a situation, the entire turn over has to be treated as escaped turn over available for assessment and if so the power under Section 25 can be invoked. 13. Though the order passed by the Tribunal cannot be sustained for the aforesaid reasons, we notice from the order that the assessee had other legal contentions which were not considered by the Tribunal as according to the Tribunal the fundamental issue to be decided was if the assessing authority was within his powers to assess the dealer under Section 25. Once we uphold the competence of the assessing officer, we have to necessarily remit the cases back to Tribunal, with a direction to consider the other cont ..... X X X X Extracts X X X X X X X X Extracts X X X X
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