P. Suresh Kumar vs State of Kerala

K.S. Radhakrishnan, J.—The assessee is the revision petitioner. Assessment relates to the year 1995-96. Following are the questions of law raised by the assessee for our consideration:

Whether, on the facts and in the circumstances of the case, is not the order of assessment in respect of the year 1995-96 passed by the assessing authority barred by limitation and accordingly null and void and of no effect?

Whether, on the facts disclosed in the case, the direction issued by the Tribunal to the assessing authority to examine the question whether the methods prescribed in Rule 63(a), (b) or (c) had been resorted to before the alleged affixture and then to pass a speaking order is warranted and justifiable in law?

Is not the order passed by the Tribunal one giving power to the assessing authority to pass a speaking order stating fresh reasons that action under Rule 63(a), (b) and (c) was not found feasible practicable and so action under Rule 63(d) was resorted to and thus uphold the illegal order of assessment supported by documents which were not there before the assessing authority?

The assessee was a registered dealer doing business in rice and cashew nuts under the name and style "Pragathi Seva Traders" at Kumbla. According to the assessee business was closed in September 1997 and the closure was duly and promptly intimated to the assessing authority. The assessee had filed its return for the year reporting a total and taxable turnover of Rs. 1,43,61,007.15 and Rs. 1,42,78,947.15, respectively. The assessing authority had called for the books of account maintained by the assessee by issuing form 50 notice dated September 14,1999. Notice was served on his residential address. On scrutiny of the records the assessing authority had concluded that the assessee had failed to maintain true and complete accounts and accordingly rejected the accounts and proposed to complete the assessment on best judgment assessment basis. Notice dated February 19, 2000 u/s 17(3) of the Act was accordingly issued to the assessee in his residential address. The assessee then submitted objections through his authorised representative. After considering the objections the assessing authority had passed assessment order putting the date March 18, 2000. According to the assessee, that order was not communicated to him for months together. On August 21, 2000, the assessee had sent a letter by registered post acknowledgment due to the assessing authority informing that though notice u/s 17(3) dated February 19, 2000 was issued to him and he had submitted his objections on March 13, 2000 final assessment order was not passed and communicated to him within the period of four years mentioned in Section 17(6) of the Act.

The assessee had also sent a letter dated August 21, 2000 informing that he was not served with the order. On receipt of that letter the assessing authority had sent a certified copy of the assessment order which is dated March 18, 2000 and was received by the assessee on October 26, 2000. The assessing authority had also suo motu exercised the powers u/s 43 of the Act and revised the assessment and reduced the tax liability to Rs. 10,86,491. The assessee filed two appeals against those orders and those appeals were finally disposed of by the Appellate Assistant Commissioner on December 22, 2000 setting aside both the orders under appeal and remitted the case back to the assessing authority for fresh disposal. The assessee took up the matter in appeal before the Tribunal. It was pointed out before the Tribunal that the impugned assessment order was not served on the assessee and the procedure contemplated under Rule 63(d) of the KGST Rules was not followed. Tribunal allowed the appeal in part and ordered as follows:

According to the Additional S.R. the impugned assessment order was served by affixture under Rule 63(d) of the KGST Rules. The rule makes it clear, that service by affixture can be resorted to only if other methods prescribed in Rule 63(a), (b) or (c) are not feasible. The assessing authority has to examine these aspects and pass speaking order. For the limited purpose the assessment is set aside and remanded to the assessing officer.

Later the assessing officer passed an assessment order dated February 22, 2003 holding that a balance amount of Rs. 87,833 is due from the assessee. That order was made available to us and we have perused that order. It is unfortunate, the assessing authority had not answered the specific question which was directed to be considered by the Tribunal, that is, as to whether the methods prescribed under rule 63(a), (b) and (c) were followed or not. Order of the assessing authority is completely silent on that aspect.

Sri. M.C. Madhavan, counsel appearing for the assessee, submitted that there is no purpose in remitting the matter again to the assessing officer, especially in the light of the specific contention raised by the assessee before all the fact-finding authorities including the Tribunal. Counsel narrated the history of the case as well as referred to the various averments contained in the revision memorandum and asserted that before affixing notice the procedure prescribed under Rule 63(a), (b) and (c) were not followed.

We have gone through the files made available and have gone through the pleadings and there is nothing to show that the assessing authority had followed the methods prescribed in Rule 63(a), (b) and (c). This Court in Ahammed Ali v. Sales Tax Officer, Tellicherry [1980] KLT 770 dealing with Rule 63 of the Kerala General Sales Tax Rules, 1963 held as follows:

There is no whisper in the counter-affidavit that either the pre-revision notice or the revised order of assessment had been given or tendered to the petitioner or his manager or agent or it had been left at the last known place of business, or residence of the petitioner or tendered to any adult member of his family. There is no averment that the address of the petitioner was not known to the respondents. If the address was known to them, it is not stated why the notice or the order had not been sent to him by registered post. In the absence of any averment to show that service by any one of the three modes under Clauses (a) to (c) of Rule 63 was not practicable, it is not open to the respondent to say that proper and effective service had been made by a mere affixture of the notice or the order in conspicuous place ''at the last known place of business'' of the petitioner. All that they say in the counter-affidavit is that it was served by affixture. That is not sufficient. In the circumstances, the conclusion is irresistible that the petitioner had not been properly served either with the pre-revision notice or the order of revised assessment. Exhibit P5 is accordingly quashed. However, it will be open to the respondents to issue fresh notice to the petitioner and proceed with the revision of the assessment.

We fully endorse the view expressed by this Court in the above-mentioned judgment. We are also of the view that in the absence of any averment to show that service by any one of the three modes under Clauses (a) to (c) of Rule 63 was not practicable, it is not open to the respondents to say that proper and effective service had been made by a mere affixture of the notice or the order in conspicuous place "at the last known place of business of the petitioner". In the absence of any material, in our view, the conclusion is irresistible that the assessee had not been properly served with the assessment order. Since the assessment order was not communicated to the assessee on or before March 31, 2000 the original order of assessment is barred by limitation.

We may indicate that the specific case of the assessee is that he had stopped his business in September 1997, even before the alleged affixture of assessment order on March 28, 2000 and in the business premises of the assessee a new business venture by name "Konkan Gas Agency" had already started functioning. In spite of the direction of the Tribunal the assessing authority had not considered the question as to whether it had followed the provisions of Rule 63(a), (b) and (c) before carrying on the affixture of notice. Under such circumstance there is no justification in further remanding the matter back to the assessing authority. We are therefore in agreement with the counsel appearing for the assessee that the assessment is barred by limitation and we hold so. Revision is allowed as above and the questions of law are answered in favour of the assessee.