2020 (1) TMI 664 - HC - VAT and Sales Tax

Challenged tax order overturned for lack of opportunity & natural justice violation. Remanded for reassessment.

M/s LAKSHMISHRI COMBINES PVT. LTD. Versus THE ASSISTANT COMMISSIONER OF COMMERCIAL TAXES (AUDIT), THE COMMISSIONER OF COMMERCIAL TAXES, THE STATE OF KARNATAKA

The court set aside the challenged order under the Karnataka Value Added Tax Act, 2003 for tax periods April 2009 to March 2010 due to lack of reasonable ... Principles of Natural Justice - validity of assessment order - It is the grievance of the petitioner that no reasonable opportunity was provided to the petitioner before passing of the order impugned - HELD THAT:- It is apparent that the assessment order impugned is made on the annual basis relating to the tax periods, April 2009 to March 2010. A reading of provisions of Rule 37 of of KVAT Rules and Section 38(7) of of KVAT Act makes it clear that the authority authorized by the Commissioner is empowered to assess to the best of its judgment for the tax period or periods that would apply to such dealer. It is incumbent on respondent No.1 – Authority to assess/re-assess the dealer for the tax period or periods which would be a calendar month in the present set of facts - No consolidated assessment on annual basis is justifiable under the scheme of the Act. Hence, on this ground alone, the order impugned deserves to be set aside. The matter is restored to the file of respondent No.1 to re-do the assessment-under Section 38(7) of the Act in accordance with law after providing reasonable opportunity to the petitioner - petition allowed by way of remand. Issues:Challenge to order under Karnataka Value Added Tax Act, 2003 for tax periods April 2009 to March 2010 based on lack of reasonable opportunity and violation of natural justice principles.Analysis:The petitioner contested an order issued by respondent No.1 under Section 38(7) in conjunction with Sections 72(5) and 36 of the Karnataka Value Added Tax Act, 2003, covering tax periods from April 2009 to March 2010. The petitioner argued that the order lacked a reasonable opportunity for their defense before issuance. It was highlighted that the assessment was made on an annual basis, contrary to the Act's scheme where the tax period is typically one month. The petitioner emphasized that the assessment should align with the Act's provisions, which mandate a monthly tax period for registered dealers. The petitioner's plea centered on the violation of natural justice principles due to the absence of a proper opportunity to present their case.The Additional Government Advocate representing the revenue attempted to justify the contested order. However, the court observed that the assessment order in question was conducted on an annual basis for the tax periods from April 2009 to March 2010, which deviated from the Act's stipulated tax period norms. Referring to Rule 37 of the Karnataka Value Added Tax Rules, 2005, the court reiterated that the tax period for registered dealers should typically be a calendar month, unless specific conditions apply. Section 38(7) of the Act empowers the authorized authority to assess a dealer to the best of its judgment for the applicable tax period. In this context, the court emphasized that the assessment should align with the dealer's tax period, typically a calendar month, and not be consolidated on an annual basis as done in this case.Consequently, the court set aside the impugned order dated 27.03.2018 and directed the matter to be returned to respondent No.1 for reassessment under Section 38(7) of the Act in compliance with the law. The petitioner was instructed to appear before the authority without further notice on a specified date to present any objections. The court emphasized the necessity of providing a reasonable opportunity for the petitioner to be heard before concluding the assessment. The judgment concluded by leaving all rights and contentions of the parties open, thereby disposing of the writ petition with the outlined observations and directives.