TaxTMI 
TaxTMI 
TaxTMI 
2013 (2) TMI 218
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....6 and 2006-7 became barred by limitation on 31 March 2009 and 31 March 2010. Hence, it has been urged that the notices are unlawful. 3. Though in the petition as originally filed there is a challenge to the constitutional validity of the provisions of Section 23 (3A) as amended by Ordinance 6 of 2011, subsequently replaced by Act 6 of 2011, during the course of the hearing, the Court was informed by learned Counsel appearing on behalf of the Petitioner that for the purpose of deciding these proceedings it would not be necessary to consider the constitutional validity of the amended provision. 4. In order to appreciate the grievance which has been urged on behalf of the Petitioner it would be necessary to advert to some of the salient provisions having a bearing on the issue. Subsection (1) of Section 21 provided that where a return is filed by the prescribed date by a registered dealer, no notice calling upon the dealer for the assessment in respect of the period covered by the return shall be served on the dealer after two years from the end of the year containing the period to which the return relates. Sub-section (2) deals with a situation where a registered dealer has not fi....
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....on 21 has been served on the dealer, the Commissioner shall assess, to the best of his judgment, the amount of tax due from him; Provided that, no order of assessment under this sub-section shall be made after the expiry of seven years from the end of the year containing the period in respect of which the notice for assessment has been issued." (emphasis supplied) 7. Section 21 which provided for a period of limitation for the issuance of a notice of assessment was deleted with effect from 1 April 2005 (the date of the enforcement of the Act) by Ordinance 6 of 2011 with effect from 10 March 2011. Simultaneously, subsection (3A) of Section 23 was amended to read as follows: "(3A) Notwithstanding anything contained in sub-section (2) or sub-section (3), an order of assessment, in respect of any period ending on or before the 31st March 2008, may be made under the respective provisions within a period of seven years from the end of the year containing the said period." 8. Prior to the amendment of sub-section (3A), that provision permitted the Commissioner to assess to the best of his judgment where a notice of assessment under Sub-section (3) of Section 23 had been served....
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....f assessment related to a period ending on or before 31 March 2008, a notice of assessment under Section 21(3) could be served on a dealer within a period of six years and an assessment could be made under Section 23(3A) within a period of seven years from the end of the year containing the period to which the notice related; (iv) Consequently, even before the amended provisions were brought in by Ordinance 6 of 2011, the Revenue in the present case was within time to serve a notice of assessment under Section 21 (3) for the period prior to 31 March 2008 and for carrying out an assessment under Section 23(3A). The assessments were not time barred; (v) The amendment of 2011 deleted Section 21 and made a consequential amendment to Section 23(3A) by introducing a non-obstante provision. As a result, the reference to the notice under Section 21 has been removed from Section 23(3A). In the present case the assessment has not become time barred on 31 March 2009 or 31 March 2010 and when a notice dated 7 January 2012 was issued, time for completing the assessment had not expired even under the unamended provision. A fortiori, it has been urged, time for completing the assessment is stil....
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....eriod in respect of which a notice of assessment was issued. Under Section 23(2), an assessment was required to be made within a period of three years from the end of the year, where a return is filed by a registered dealer. This was a general provision. Section 23(3A) operated in an area where a notice under Section 21(3) has been served on the dealer. Such a notice, as already observed above, is governed by the period ending on 31 March 2008. 12. The effect of Ordinance 6 of 2011 was to delete the provisions of Section 21 in their entirety with effect from the date of enforcement of the MVAT Act - 1 April 2005. Since Section 21 stood deleted, the reference sub-section (3) of that provision in Section 23(3A) became otiose. In consequence, Section 23(3A) was also amended so as to delete the reference to the notice under Section 21(3) and to provide a substantive non-obstante clause that would override sub-sections (2) and (3). 13. The submission which has been urged on behalf of the Petitioner is that the assessments for AYs 2005-6 AND 2006-7 would be time barred respectively on 31 March 2009 and 31 March 2010. This submission proceeds on the basis that the second proviso to Sect....
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.... by limitation?" The ratio of the judgment of the Division Bench has been stated as follows in paragraph 25: "25. In the premises, the relevant law applicable in the present case at the time when the Commissioner issued notice of suo motu revision, was the period of limitation in force on that day, i.e., section 57 as amended on 1st May, 1970 (3rd amendment). The Commissioner was, therefore, required to issue a notice within 3 years of the communication of the assessment order. In the present case the assessment order was passed on 20th April, 1967. There is no dispute that the notice of the Commissioner, which is dated 14th March, 1972, is beyond the period prescribed under the 3rd amendment to section 57. It is therefore time-barred." In paragraph 14 of the judgment the Division Bench observed that limitation is a matter of procedural law yet where a right is accrued to the party because the prescribed period of limitation has expired, this accrued right cannot be taken away by any subsequent Act which enlarges the time. The Division Bench was of the view that if a subsequent Act enlarges the time while the period of limitation prescribed under an old Act has not expired, the....