TaxTMI 
TaxTMI 
2009 (1) TMI 796
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.... By an order dated November 27, 2008, the respondent provisionally assessed the total and taxable turnover of the petitioner for the year 2006-07 under section 25 of the Act at the rate of 12.5 per cent on the sales turnover. Similarly, by another order of the same date, the respondent made a provisional assessment for the year 2007-08, under section 25, assessing the dealer at the rate of 12.5 per cent on the sales turnover. The petitioner has come up with a challenge to these assessment orders on the ground that the occasion to invoke section 25 did not arise in these cases and that the respondent ought to have passed a final assessment order in terms of section 22. However, it is contended by the learned Government Advocate that the or....
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.... of the Tamil Nadu Value Added Tax Act, 2006, reads as follows: "Section 22. Procedure to be followed by assessing authority.-(1) The assessment in respect of the dealer shall be on the basis of return relating to his turnover submitted in the prescribed manner within the prescribed period. (2) The assessing authority shall accept the returns submitted for the year, by the dealer, if the returns are accompanied by the proof of payment of tax and the documents prescribed, and on such acceptance, the assessing authority shall pass an assessment order. (3) Notwithstanding anything contained in sub-section (2), not exceeding twenty per cent of the total number of such assessment shall be selected by the Commissioner in such manner as....
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.... return in time was due to reasons beyond the control of the applicant, cancel the assessment made and make a fresh assessment on the basis of the return submitted: Provided that no application shall be entertained under this subsection unless it is accompanied by satisfactory proof of the payment of tax admitted by the applicant to be due or any such instalment thereof as might have become payable, as the case may be. (b) If the amount of tax on the basis of the cancelled assessment has already been collected and if the amount of tax arrived at as a result of the fresh assessment is different from it, any amount over paid by the dealer shall be refunded to him without interest, or the further amount of tax, if any, due from him shall be ....
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....words, the impugned orders do not show that the petitioner either failed to file a return under section 21 of the Act, within the prescribed period-or-filed a return with incomplete or incorrect particulars. Since the pre-requisites for invoking section 25(1) are not indicated in the impugned orders, to have been satisfied, the respondent could not have invoked section 25 of the Act. On the contrary, the impugned orders show that the petitioner has actually reported a total and taxable turnover in the monthly returns filed in respect of both the assessment years. Therefore it cannot be presumed, in the absence of a statement contained in the impugned assessment orders that the contingency for invoking section 25 had arisen in these cases. ....