AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2013 (4) TMI 125
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....over of the petitioner has escaped assessment. The petitioner filed appeal against reassessment order before Deputy Commissioner (Appeal), Sales Tax Kanpur, who vide its order dated 16th January, 1990 allowed the appeal and set aside the reassessment order passed under Section 21 of the Act for the assessment year 1984-85. Thereafter, the petitioner was served with the impugned order passed by the Sales Tax Officer, Mahoba purporting to be under Section 21(4-A) under the U.P. Sales Tax Act. Questioning the legality and validity of the said order, the present writ petition has been filed. In the writ petition, the main challenge is on the ground of limitation i.e. the impugned order has been passed beyond the prescribed period of limitation. It is further stated that the limitation for completion of the assessment under Section 21(2) is four years. The said period of limitation of four years has been expired in the year 1989. It is further pleaded in the writ petition that sub-section (4-A) was inserted by U.P. Act No. 8 of 1992 w.e.f. 1st January, 1992 and is not retrospective in operation. It will not apply to such cases where period of limitation has already expired. Controvert....
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.... respect thereof, the assessing authority may, after issuing notice to the dealer and making such inquiry as it may consider necessary, assess or reassess the dealer or tax according to law]: Provided that the tax shall be charged at the rate at which it would have been charged had the turnover not escaped assessment, or full assessment as the case may be. Explanation [1]:.-- Nothing in this sub-section shall be deemed to prevent the assessing authority from making an assessment to the best of its judgment. [Explanation II.--For the purposes of this section and of section 22, "assessing authority" means the officer or authority who passed the earlier assessment order, if any, and includes the officer or authority having jurisdiction for the time being to assess the dealer. Explanation III.--Notwithstanding the issuance of notice under this-section, where an order of assessment or re-assessment is in existence from before the issuance of such notice it shall continue to be effective as such, until varied by an order of assessment or re -assessment made under this section in pursuance of such notice]. [(2) Except as otherwise provided in this section, no order of assessment or t....
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.... [(5) If an order of assessment or re-assessments for any assessment year is set aside under section 30, a fresh order of assessment or re-assessment for that year may be made within six months from the date on which such earlier order was set aside]. [(5-A) If an exparte order of assessment or re-assessment or penalty passed against a sick unit is set aside by the State Government by an order under sub-section (2) of Section 38, a fresh order of assessment or re-assessment or penalty, as the case may be, for that year may be made within one year from the date of receipt of such order of State Government by the assessing authority concerned]. [(6) Where the proceedings for assessment or re-assessment for any assessment year remain stayed under the orders of any court or authority, the period commencing on the date of stay order and ending with the date of receipt by the Assessing Authority concerned of the order vacating the stay, shall be excluded in computing the period of limitation provided in this section: Provided that if in so computing the period of limitation comes to less than six months, such assessment or re-assessment may be made within six months from the date of ....
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....er the expiration of six years from the end of such assessment year or March 31, 2002, whichever is later notwithstanding that such assessment or re-assessment may involve a change of opinion. In the second proviso assessment or re-assessment for the assessment year 1987-88 can be made upto 31st March, 1993. In the fourth proviso assessment or re-assessment for the assessment year 1989-90 can be made upto 31st March, 1995. The period of limitation prescribed in sub-section (2) of Section 21 of the U.P. Act will not apply if the case falls under any other sub-sections to Section 21 of the U.P. Act as it starts with "except as otherwise provided in this section". Under sub-section (3) of Section 21 of the U.P. Act if the notice under sub-section (1) has been served within the period specified in sub-section (2), the order of assessment or re-assessment can be made within six months after the expiration of the period provided under sub-section (2). However, under sub-Section (4) if an order of assessment is set aside and the case is remanded for re-assessment by any authority under the provisions of the U.P. Act or by a competent Court, the order of re-assessment has to be made within....
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....e whole procedure for ascertaining and imposing liability upon tax-payer. In A.N. Laxman Shenoy Vs. Income Tax Officer, Arnakulam, AIR 1958 SC 795, the Supreme Court has held as follows:- "The word 'assessment' has to be understood in each section of Income Tax Act, 1922 with reference to the context in which it has been used. In some sections it has a comprehensive meaning and in some of the restricted meaning, to be distinguished from 'reassessment' or even a 'fresh assessment'. Keeping the above pronouncements in the background of mind, on turning to the U.P. Trade Tax Act, we find that section 7 of it deals with the determination of turnover and assessment of tax. Every dealer who is liable to pay tax under the U.P. Trade Tax Act shall submit such return of his turnover at such intervals as has been prescribed. The heading of section 21 with which we are presently concerned, is 'assessment of tax on a turnover not assessed during the year', which is suggestive of the fact that section 21 deals with the assessment of tax on the escaped turnover. The said section has seven sub-sections. Except sub-sections (4) and (4A), in all other its sub-sect....
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....g at the commencement of the 1961 Act and assessments to be made after the commencement of the 1961 Act as a result of returns of income filed after the commencement of the 1961 Act. Then in cl. (d) it deals with assessments in respect of escaped income; in cls. (f) & (g) it deals with levy of penalties; cl. (h) continues the effect of elections or declarations made under the 1922 Act; cl. (i) deals with refunds; cl. (i) deals with recovery; cl. (k) deals generally with all agreements, notifications, orders issued under the 1922 Act; cl. (1) continues the notifications issued under s. 60(1) of the 1922 Act and cl. (in) guards against the application of a longer period of limitation prescribed under the 1961 Act to certain applications, appeals, etc. It is hardly believable in this context that Parliament did not think of appeals and revisions in respect of assessment orders already made or which it had authorised to be made under cl. (a) of s. 297(2)" Further reliance was placed on Commissioner of Sales Tax, Madhya Pradesh v. H.M. Esufali H.M. Abdulali, (1973) 32 STC 77. This case relates to best judgment of assessment. Reference was made to Messrs. Chatturam Horilram Ltd. v. Com....
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....e of argument the words--"if an order of assessment" are read to include "if an order of reassessment", it would create anomalous position. The law attaches finality to assessment orders. Only under exceptional circumstances, such as where the tax has escaped the assessment, a power has been given to the Tax Authority to bring the escaped income or turnover to tax and not otherwise. The limitation for initiation of reassessment proceedings could be extended for further specified period. The object of insertion of sub-section (4A) appears to be that where an assessment order is set aside on the ground of want of jurisdiction of the Assessing Authority or any like other ground and the matter has not been remanded back to the Assessing Authority, the competent Assessing Authority may take resort to sub-section (4A) of the Act. Meaning thereby, the technical objection regarding jurisdiction should not come in the way of assessing the tax. On a plain and simple reading of sub-section (4-A) setting aside or quashing of reassessment on the ground of want of jurisdiction of the Assessing Authority is not included therein. The expression "order of assessment" occurring in sub-section (4-A)....