TaxTMI 
TaxTMI 
2010 (7) TMI 928
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....imitation of "three years" was substituted by a period of limitation of "five years". The short question that arises for determination in the present writ petition is, whether the jurisdiction invoked by the opposite party after coming into force of the amendment, has got to cover a period of limitation up to "five years" preceding next the date of issuance of the impugned notice or the limitation as prescribed in the amended provision is prospective in nature and it would apply only to reassessments onwards from the date of coming into force of the amendment? The petitioner is a registered dealer. He deals in sarees under the jurisdiction of the opposite party. For the period 2003-04 the original assessment under section 7 of the Act wa....
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....roceedings for the period 2005-06 and onwards, the amendment having come into force with effect from October 19, 2005. In other words, it is the case of the petitioner that the escaped turnover being related to the assessment period from April 1, 2003 to March 31, 2004 admittedly the period of limitation prescribed in section 9 of the Act had already expired by March 31, 2007 and the impugned notice vide annexure 4 having been issued on July 17, 2008, issuance of the aforesaid notice itself is illegal and cannot be sustained in the eye of law. With such interpretation in mind learned counsel for the petitioner submits that the entire reassessment proceeding is vitiated on the ground of defect and illegality in the notice. In order to substa....
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.... imposed by the charging section and to make the machinery workable-ut res magis valeat quam pereat. In view of such legal position, it is to be found out first, whether the provisions under which the notice issued has been impugned in the present writ petition, are machinery provisions or charging provisions. Charging provisions in a taxing statute are those substantive provisions which create the charge and provides for levy of tax. Machinery provisions on the other hand, are the provisions providing for procedures to carry out the purpose of the statute. Regard being had to the provisions in amended section 10 of the Act and rule 15D of the Rules, the aforesaid provisions cannot be said to be charging provisions or substantive provisi....
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....e dealer and after making such enquiry as he considers necessary. (2) In making an assessment under sub-section (1) the assessing authority may, if he is satisfied that the escape from assessment is due to wilful non-disclosure of the entry of such goods by the dealer, direct him to pay in addition to the tax assessed under sub-section (1) a penalty not exceeding one and a half times the tax so assessed: Provided that no penalty under this sub-section shall be directed to be paid unless the dealer affected has been given a reasonable opportunity of showing cause against such imposition. (3) In computing the period of limitation for assessment under this section the time during which an assessment has been deferred on account of any st....
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.... assessing authority may proceed to reassess the tax payable by the dealer in accordance with such judgment or order, at any time within a period of three years from the date of the judgment or order." (emphasis Here italicised. supplied) Section 10 of the Act came into existence with effect from May 19, 2005. The purpose of the provisions is to reassess escaped or under-assessed turn over relating to a particular assessment year within a period of "five years" from the expiry of the year to which the tax period relates. It is the precise contention of the learned counsel for the petitioner that the tax period for which the petitioner has been reassessed being 2003-04, the reassessment for the period in question should have been taken up....
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....effect from February 19, 1991. It provided for limitation of eight years for reassessment, which was hither-to four years. On construction of the provisions of the Act and the amended proviso, the honourable Supreme Court in clear term held that the proviso to sub-section (2) of section 21 is operative from February 19, 1991 and a bare reading of the proviso shows that the operation of this proviso relates back to and encompasses previous eight assessment years. With the aforesaid background of law in mind when the provisions quoted supra are read, it is clearly understood that section 10 of the Act has extended the limitation of "three years" to "five years" for initiation of a reassessment proceeding in the case of under-assessment or ....