IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 14TH JULY 2011 / 23RD ASHADHA 1933 ST.Rev..No. 257 of 2010() ------------------------- TA.169/2008 of S.T.A.T.ADDL.BENCH,THIRUVANANTHAPURAM .................... REVISION PETITIONER/ RESPONDENT/REVENUE --------------------------------------------------- STATE OF KERALA,REP.BY DEPUTY COMMISSIONER(LAW),COMMERCIAL TAXES,ERNAKULAM. BY GOVERNMENT PLEADER SRI. V.K. SHAMSUDHEEN RESPONDENT: APPELLANT/ASSESSEE --------------------------------- M/S.SUPREME BAKERS,CHINNAKKADA, KOLLAM 691 001. ADV. SMT.S.K.DEVI SRI.M.RAJ MOHAN THIS SALES TAX REVISION HAVING BEEN FINALLY HEARD ON 14/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.T.REV. 257/2010 APPENDIX ANNEXURES: ANNEXURE-A TRUE COPY OF THE REVISED ORDER DATED 11.9.2006. ANNEXURE-B A TRUE COPY OF THE ORDER OF THE DEPUTY COMMISSIONER APPEALS) DATED 15.1.2008. ANNEXURE-C A TRUE COPY OF THE ORDER OF THE TYRIBUNAL DATED 13.11.2006. // TRUE COPY // P.S. TO JUDGE. KNC/- "CR" C.N. RAMACHANDRAN NAIR & P.S. GOPINATHAN, JJ. = = = = = = = = = = = = = = = = = S.T.REV. NO. 257 OF 2010 = = = = = = = = = = = = DATED THIS, THE 14TH DAY OF JULY, 2011. J U D G M E N T C.N. Ramachandran Nair, J. The short question raised in this revision filed by the State is whether the Tribunal was justified in cancelling the revised assessment made under Section 19 of the Kerala General Sales Tax Act for the reason that it does not refer to the regular assessment and is not made part of the regular assessment. We have heard the learned Government Pleader appearing for the revision petitioner State and counsel appearing for the respondent- assessee. 2. On the short question whether an independent assessment is maintainable under Section 19 of the KGST Act without affecting and simultaneously retaining the original assessment completed under Section 17(3) of the Act, the Tribunal, by following a judgment of this Court in an income tax matter and another Tribunal's order, took the view that there is no scope for making separate assessment under Section 19 and if at all assessment is to be revised, the same has to be done only by revising the original assessment. In other words, according to the Tribunal's finding, ST.REV. 257/2010 2 there can be one assessment even after the original assessment is revised under Section 19. Section 19(1) is as follows: 19. Assessment of escaped turnover:- (1) Where for any reason the whole or any part of the turnover of business of a dealer has escaped assessment to tax in any year or has been under-assessed at a rate lower than the rate at which it is assessable or any deduction has been wrongly made therefrom, the assessing, authority may, at any time within five years from the expiry of the year to which the tax relates, proceed to determine to the best of its judgment the turnover which has escaped assessment to tax or has been under-assessed or has been assessed at a rate lower than the rate at which it is assessable or the deduction that has been wrongly made and assess the tax payable on such turnover after issuing a notice on the dealer and after making such enquiry as it may consider necessary: Provided that before making an assessment under this sub-section the dealer shall be given a reasonable opportunity of being heard. Provided further that the time limit mentioned in this sub-section shall not apply where the turnover which escaped assessment relates to any business done by such dealer as benamidar or through a benami or where it relates to a dealer, who being liable to get himself registered under this Act and the rules made thereunder has failed to do so." 3. What is clear from the above is that assessment completed could be re-opened for bringing to tax escaped turnover, when the rate of tax applied is low or if excess relief is granted in the original assessment. In ST.REV. 257/2010 3 all cases of escaped assessment covered by section 19(1) the officer has to issue notice and make assessment after giving opportunity to the assessee to file objection on the proposal for revision of assessment. The proceedings issued under Section 19 is a revised assessment and the same is independent of the original assessment. It is up to the officer to decide whether revised assessment can be made under Section 19 to bring to tax escaped turnover without affecting; but simultaneously retaining the original assessment intact. On the other hand, if the assessing officer feels that major revision is required in the original assessment, a consolidated revised assessment can be made under Section 19 incorporating the original assessment as well. However, this option available to the officer does not mean that an independent assessment under Section 19 is not possible or is not maintainable. In fact, if it is a matter of only making assessment of an item of escaped turnover under Section 19, the officer needs to deal with escaped turnover in the Section 19 proceedings and revised assessment so issued will be an independent order and the same does not affect the original assessment. Therefore, in our view, the Tribunal thoroughly went wrong in assuming that the turnover escaped assessment issued under Section 19(1) of the KGST Act cannot have independent existence. In this case, the assessing officer obviously made a separate assessment under ST.REV. 257/2010 4 Section 19(1) after making original assessment and the assessee also accepted the same by filing separate appeals against the original and revised assessments before the first appellate authority. However, when second appeal was filed the assessee sought to challenge only the appellate order confirming the revised assessment and so much so, the Tribunal considered the appeal filed against the said assessment. The Tribunal's finding is not sustainable either in law or in logic and we therefore, allow the revision filed by the State by setting aside the same. However, since the Tribunal has not considered the correctness of the reassessment on merits, we restore the appeal to the Tribunal and direct them to decide the case on merits after hearing the respondents. C.N. RAMACHANDRAN NAIR, (JUDGE). P.S. GOPINATHAN, knc/- (JUDGE)