2015 (4) TMI 1173

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....ioner-assessee first respondent namely Deputy Commissioner of Commercial Taxes, (Audit)-3. 4, DVO-3 passed an order under section 39(2) of the Act on 10.02.2015 Annexure-E. Assailing the validity of notice dated 25.11.2014 Annexure-B for reassessment being illegal and as such re-assessment order passed under section 39(2) read with section 72(2) and 36(1) of the Act for the year 2011-12 is void is under challenge in these writ petitions. 3. I have heard the arguments of Sri. M.N. Shankare Gowda, learned counsel appearing for petitioner and Sri. T.K. Vedamurthy, learned HCGP appearing for respondents. Original records have been produced by learned HCGP and same have been perused. 4. Contentions of Sri. M.N. Shankare Gowda, learned counsel appearing for petitioner are as under: (i) Order dated 09.01.2014 Annexure-A is an order passed under section 38(1) and not an order passed under section 39(1) and as such question of issuing notice under section 39(2) and passing an order thereunder for re-assessment does not arise; (ii) First respondent is not authorized by second respondent under Rule 46 of the Karnataka Value Added Tax Rules to initiate proceedings under....

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....d HCGP it would emerge that order dated 09.01.2014 does not indicate that it is an order passed under section 38(1) of the Act. It is clearly mentioned therein that by virtue of assignment No.19026573 assessee was called upon to produce the books of accounts for verification which related to the period 2011-12 an d in response to the same, the authorized representative of petitioner-assessee appeared and produced the books of accounts and on scrutiny of the same, an order came to be passed on 09.01.2014, which is apparently an order passed under section 39(1) and it cannot be construed as a n order being passed under section 38(1) as contended by Sri. M.N. Shankare Gowda, learned counsel appearing f or petitioner, inasmuch as an order under section 38(1) is a deemed assessment order based on the returns filed by assessee and accepting the same without calling for production of books of accounts. Whereas in the instant case assessing officer has called upon the assessee/petitioner to produce books of accounts and after scrutiny of records assessment order dated 09.01.2014 came to be passed. It also requires to be noticed that the Commissioner i n exercise of power under Rule 46 has ....

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....saction. However, Commissioner while ordering for re-assessment and transferring file from Deputy Commissioner of Commercial Taxes, (Audit)-3.3 to Deputy Commissioner of Commercial Taxes, (Audit)-3.4 has categorically assigned it to Deputy Commissioner of Commercial Taxes, (Audit)-3.4 to carry out re-assessment in respect of VAT transaction and as such second contention also cannot be accepted and it stands rejected. 9. There cannot be any dispute with regard to the proposition laid down by this court in the case of Model Bucket and Attachments Private Limited, Dharwad Vs The Deputy Commissioner of Commercial Taxes (DM), Hubli reported in 2010(69) Kar.LJ 290 whereunder Co-ordinate Bench of this court has held that re-assignment can be done only by prescribed authority referred to under sect ion 39(1) of the Act read with Rule 46. It has been held by the Co-ordinate Bench of this court in said Judgment as under: "9. A reading of the provisions of Section 39(1) it makes clear that it confers power for reassessment and further reassessment and to levy tax, penalty and interest thereon. However, reassessment could be done only by the prescribed authority. The pr....

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....rejected. No costs. It is needless to state that petitioner if so advised, would be entitled to file a statutory appeal against order of re- assessment dated 10.02.2015 Annexure-E within three weeks from today. In the event of such appeal being file d appellate authority shall not insist for application for condonation of delay being filed and it shall examine such appeal on merits and in accordance with law. Registry is directed to return the certified copy of impugned order dated 10.02.2015 Annexure-E if sought for, on same being substituted with a photo copy duly at tested by learned counsel for petitioner. Ordered accordingly. ============= Document 1 “ಆದೇಶ ಸಂಖ್ಯೆ: ವಾತೆಅಆಗು&ಸ) ಸಿಎಎಸ್/ಸಿ.ಆರ್- 03/13-14/17, : 19/11/2014 ಪ್ರಸ್ತಾವನೆಯಲ್ಲಿ ವಿವರಿಸಿರುವಂತೆ, ಈ ಆದೇಶಕ್ಕೆ ಲಗತ್ತಿಸà....