Petitioner challenges Ext.P6, an order of assessment passed by the Assistant Commissioner, Special Circle-I, Department of Commercial Taxes, on 28.05.2014. It is inter alia, contended that as against the order passed by the Assessing Authority by way of Ext.P1 dated 26.08.2008, petitioner had preferred an appeal. By order dated 21.03.2010, the Appellate Authority made some modification. Petitioner preferred second appeal as T.A VAT No.203/2010. By order dated 03.08.2012, the Appellate Tribunal remitted the matter to the Assessing Authority for fresh consideration. Pursuant to it Ext.P4 notice was issued by the Assistant Commissioner under Section 25(1) of the Kerala Value Added Tax (KVAT) Act, to which the petitioner had submitted Ext.P4 reply dated 25.05.2014, which resulted in Ext.P6 order.
2. The main contention urged by the petitioner is that while issuing Ext.P4 notice, the Assessing Officer has included various items which was not covered by the earlier order passed. Therefore, the petitioner had submitted preliminary objections stating that such an assessment is not permissible under law and the Assessing Authority ought to have confined
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to the order of remittance, reference to which the appeal has been filed. Without considering the preliminary objections, Ext.P6 order came to be passed.
3. It is not in dispute that Ext.P6 is an appealable order. The contention of the learned counsel for the petitioner is that fresh proceedings have been taken which is against law.
4. Counter affidavit has been filed by third respondent controverting the allegations and supports Ext.P6 order. Learned Government Pleader submits that as per Ext.P3 order, the remand is not confined to the earlier orders passed. It is open for the Assessing Authority to pass fresh orders. Therefore, Ext.P4 notice and proceedings at Ext.P6 is passed in accordance with law.
5. The contention urged by the petitioner is that the Assessing Officer is not entitled to proceed with the assessment in view of the fact that Ext.P3 order was confined only to certain items, which was not covered by Ext.P4 notice. This contention has been rebutted by the learned Government Pleader by contending that when an open remand has been made by the Appellate Authority, it is open for the Assessing Officer to reconsider the matter and pass fresh proceedings.
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6. The learned counsel for the petitioner also submits that, on account of bar of limitation, it is not possible for the Assessing Officer to pass Ext.P6 order including new items in the assessment order.
7. There is no dispute about the fact that, the petitioner has an alternate remedy for filing appeal against Ext.P6 order. The question is whether the Assessing Officer has the right by virtue of Ext.P3 to pass fresh orders after issuing notice by way of Ext.P4 and to pass orders by way of Ext.P6. Apparently these are all matters which involves determination of factual disputes which could be considered only in a proper appeal filed by the petitioner. Hence, I do not think that this Court should exercise the power of judicial review to set aside Ext.P6.
In the result, this writ petition is disposed of giving liberty to the petitioner to file necessary appeal against Ext.P6 order before the competent Appellate Authority. The petitioner is permitted to take all contentions raised here before the Appellate Authority. Petitioner is granted one month time to file an appropriate appeal. In the meantime the recovery proceedings shall be kept in abeyance.
Sd/- A.M.SHAFFIQUE, Judge lsn