JUDGMENT

( Delivered by T .S.Sivagnanam,J )

This writ appeal filed by the Commercial Taxes Department of Puducherry is directed against the order dated 13.02.2020 passed in W.P.No.11624 of 2015.

2. The respondent is a registered dealer on the file of the appellant under the provisions of the Puducherry Value Added Tax Act, 2007 ('PVAT Act' for brevity). The respondent challenged the assessment order for the year 2010-11 in this case. Admittedly, the respondent-dealer did not file any objections to the pre-assessment notice dated 06.06.2014, but sought for extension of time by representation dated 13.06.2014, stating that they have been granted 30 days time to submit the documents. Even as per the respondent's letter, the 30 days time would be over by July, 2014 and it appears that the respondent did not produce the required Form-F declaration to substantiate his claim. The appellant/Assessing Officer, left with no other alternative, has completed the assessment on best of judgment basis vide order dated 10.09.2014 and determined the taxable turnover and demanded tax and also penalty. It is thereafter the respondent-dealer filed a petition, dated 30.03.2015 and without even allowing reasonable time for the appellant/Assessing Officer to take a decision in the matter, the respondent rushed this Court and filed the writ petition on 03.04.2015, as seen from the copy of the writ petition filed in page 24 of the typed set of papers, though the date seal of the register shows the date as 20.04.2015 as could be seen from page 25. Nevertheless, reasonable time was not granted to the Assessing Officer to take a decision on the representation dated 30.03.2015 filed under Section 73 of the PVAT Act.

3. The appellant resisted the prayer in the writ petition by filing a counter affidavit. However, the learned Single Bench, by the impugned order, remanded the matter to the Assessing Officer to pass appropriate orders under Section 73 of the PVAT Act by considering the respondent's representation as well as Form-F declaration, which they have produced.

4. Mrs.V.Usha, learned Additional Government Pleader appearing for the appellant would submit that the power under Section 73 of the PVAT Act empowers the Assessing Officer only to correct the error apparent on the face of the assessment order and not otherwise and admittedly, the respondent-dealer did not respond to the first summon, dated 04.12.2013 and therefore, a second summon was issued on 25.03.2014, for which a letter was given by the respondent seeking adjournment of the matter by two weeks to produce the documents. Even thereafter, no documents were produced and pre-assessment notice dated 06.06.2014 was issued, for which the respondent gave a representation dated 13.06.2014 requesting for 30 days time to produce the documents, but they failed to do so and therefore, the respondent was dragging on the matter and the Assessing Officer had to complete the assessment and did so on best of judgment on assessment basis. Therefore, it is submitted that there is no procedural illegality committed by the Assessing Officer and if the respondent was aggrieved by the assessment order, they should have filed an appeal before the first appellate authority and the Assessing Officer cannot reopen his assessment as he has become functus officio.

5. The learned Additional Government Pleader is right in her submission that the power under Section 73 of the PVAT Act is not the power to reopen the assessment. This power is to rectify any error apparent on the face of the record and such power is available to the Assessing Authority, Revising Authority and the Appellate Tribunal, within a period of 3 years from the date of any order passed by it and rectify any error apparent on the face of the record. However, if the rectification would realize in enhancing an assessment or any penalty, the dealer has to be allowed reasonable opportunity of having heard in terms of the proviso under Section

73(1) of the PVAT