Sales Tax Appeal No. 1443 of 2010 [CH-8]. Case: Ganesha and Company Vs State of Karnataka. Karnataka Appellate Tribunal
| Case Number | Sales Tax Appeal No. 1443 of 2010 [CH-8] |
| Counsel | For Appellant: Sri M.V. Ganesh Prasad, Party-in Person and For Respondents: Sri B. Vasanthkumar, State Representative |
| Judges | S.L. Subramanya, CTM and Basavaraj S. Sappannavar, DJM |
| Issue | Agricultural Income-tax Act, 1957 - Sections 19(3), 22, 23, 26, 27, 32, 32(1), 32(2), 32(5), 32A, 34(1), 37 |
| Citation | 2013 (77) KarLJ 87 |
| Judgement Date | July 05, 2013 |
| Court | Karnataka Appellate Tribunal |
Order:
S.L. Subramanya, CTM
1. This appeal is filed under Section 34(1) of the Karnataka Agricultural Income-tax Act, 1957 (for short, 'the Act') against the order passed under Section 32(5) of the Act for the assessment year 1989-90 (financial year ending on 31-3-1989) by the Joint Commissioner of Commercial Taxes (Appeals), Malnad Division, Shimoga (for short, 'FAA') by which appeal filed under Section 32(1) of the Act was rejected as barred by limitation by Appeal Order No. KAIT.AP. 03/2008-09, dated 11-7-2008. The brief facts relevant to decide the aforesaid matter are these:
Assessment order under Section 19(3) of the Act was passed by the Assistant Commissioner of Commercial Taxes (AIT) (Assessment), Chikmagalur on 31-7-1996. This order was carried in appeal before FAA in Appeal No. KAIT.AP. 03/2008-09. The FAA rejected the appeal as barred by limitation for the reason that the appeal against the aforesaid order of assessment was dismissed and against the order of appeal passed by FAA was not appealed before this Tribunal. Consequently, the order of assessment was held to have become final. Secondly, it was observed that the application for rectification under Section 37 of the Act which should be filed within five years from the date of passing the order of appeal was not filed within the above period of limitation. The appeal was finally held as barred by limitation.
2. The aforesaid appeal order passed by FAA is disputed as to its validity in the present appeal. The main grievance of the appellant is that the status of the assessee was required to have been considered as registered partnership firm in the name and style of M/s. Ganesh and Company, Chikmagalur instead of Body of individuals in the name and style of M.L. Vasudeva Murthy and Others, Coffee Planter, Lalithabhandara Estate, Chikmagalur. Among other grounds, the present appeal petition is filed challenging the validity of appeal order passed by FAA.
3. The FAA has recorded categorically in the appeal order passed by him that an appeal order was already passed by dismissing the appeal for the assessment year 1989-1990 and it was not appealed before the Karnataka Appellate Tribunal. Hence, he held that orders of AA and FAA have become final. Even for rectification if any under Section 37 of the Act, the limitation provided therein had expired. Consequently, he held the appeal filed by Sri M.V. Ganesh Prasad as barred by limitation. The appellant applied for rectification of the impugned appeal order in the application filed on 25-7-2008 under Section 37 of the Act. The FAA reiterated his findings given in the impugned appeal order and the application for rectification was rejected by endorsement issued on 29-7-2008. Again, one more application for rectification was filed on 30-7-2008 under Section 37 of the Act. He reiterated his findings given in the impugned appeal order and the reasons given in the endorsement issued on 29-7-2008 and rejected this second application for rectification. In both the applications for rectification, it was pleaded to consider the status of firm as registered partnership firm instead of body of individuals as per the assessment order. Both the applications were rejected for the reasons recorded in the impugned appeal order and the endorsements issued.
4. In view of the categorical finding of the FAA in the impugned appeal order that no appeal was filed before Karnataka Appellate Tribunal and secondly there was no case for rectification, it became necessary for us to examine and give our findings as to whether the present appeal is maintainable in accordance with facts and law.
5. We have verified the records of the lower authorities.
6. Sri M.V. Ganesh Prasad, who is stated to be one of the partners in the firm having name and style M/s. Ganesha and Company, Chikmagalur was heard in regard to maintainability of the present appeal. Several opportunities of being heard were allowed to him. Written submissions and arguments submitted by him were duly considered by us. We have also heard the learned State Representative and written submissions filed by him have also been considered by us.
7. For the above reasons, the points that arise for our consideration are as under:
Point No. (1): Whether, in facts and circumstances the appeal is maintainable under Section 34(1) of the Act?
Point No. (2): What order?
8. Our answer to the above points are as under:
Point No. (1): In the negative.
Point No. (2): As per the order for the reasons assigned below:
REASONS
9. Point No. (1).--Section 34(1) of the Act reads as under:
34. (1) Any officer empowered by the State Government in this behalf or any assessee objecting to an order of the Assistant Commissioner of Agricultural Income Tax or an Agricultural Income Tax Officer under Section 23, or an order passed by the Joint Commissioner under Section 22 or Section 32 or Section 32A, may appeal to the Appellate Tribunal within sixty days from the date on which the notice of such order was communicated to the assessee.
As per the aforesaid provision, only an assessee objecting to an order passed by the lower authorities as per any of the provisions mentioned in the aforesaid provision can appeal. Thus, the appellant has to establish himself as an assessee objecting to the order passed under any of the provisions mentioned under Section 34(1) of the Act. In other...
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