TaxTMI 
TaxTMI 
2015 (4) TMI 170
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....ment years under consideration. WP(C) No. 708/2009 is concerned with the assessment year 1999-2000 and WP(C) No.709/2009 is concerned with the assessment year 2000-2001. 03. Since both the writ petitions are identical, for the sake of convenience, facts of WP(C) No.708/2009 are briefly referred to hereunder. 04. Petitioner is a company incorporated under the provisions of the Companies Act, 1956, having its registered office at Kolkata. It has one of its Area Sales Office at Guwahati. Petitioner was a registered dealer under the Assam General Sales Tax Act, 1993 (AGST Act) and after its repeal it is a registered dealer under the Assam Value Added Tax Act, 2003. Respondent No. 3 is the Assessing Officer of the petitioner. 05. Petitioner is engaged in the business of manufacture and marketing of coconut oil under the brand name "Shalimar Coconut Oil". According to the petitioner, coconut oil manufactured and marketed by it, is suitable for consumption and is certified as an edible grade oil. Petitioner submitted representation before respondent No. 2 on 11.04.2000, seeking clarification regarding taxability on coconut oil, since it is partly used as edible oil and partly use....
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....granted in the said proceeding on 13.12.2007 directing the respondents not to make any recovery of tax pursuant to the impugned communications on condition that petitioner would give bank guarantee for the differential amount of tax. 11. Petitioner received a notice from respondent No. 3 dated 10.02.2009 asking him to produce books of accounts, documents and evidence in support of the return submitted in respect of the assessment years 1999-2000, 2000-2001 and 2001-2002. It was stated that in case of non-compliance, summary assessment would be carried out. 12. Petitioner submitted reply dated 17.02.2009 contending that the notice issued for the years 1999-2000 and 2000-2001 was without jurisdiction being barred by limitation. It was pointed out that under section 19 of the AGST Act, no assessment could be made after expiry of 3 years from the end of the year in respect of which the assessment was made. The limitation period for the 2 years had expired on 31.03.2003 and 31.03.2004 respectively. Therefore, respondent No. 3 was requested to withdraw the notice. 13. Respondent No.3 thereafter issued impugned notice dated 17.02.2009 to the petitioner stating that a reference wa....
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....nd that under the AGST Act, the Commissioner was empowered to determine certain disputes. Therefore, it is contended that submission of petitioner that the impugned notices are time barred is clearly unsustainable and the writ petitions should be dismissed. 17. In its reply-affidavit, petitioner has contended that clarification given by the Commissioner, respondent No. 2, cannot be deemed to be a "reference" as is understood in law. AGST Act does not provide for any reference. Therefore, impugned notices are clearly barred by limitation under section 19(1). 18. We have heard learned counsel for the parties. 19. Short point for consideration is whether the impugned notices are barred by limitation or not. 20. To answer the above question, it may be apposite to first refer to the relevant documents placed on record. 21. From the clarification of respondent No. 2, dated 21.11.2006, addressed to the respondent No. 3, it is seen that the said clarification was issued on the letter of respondent No. 3, dated 17.03.2003. It was clarified by respondent No. 2 that coconut oil is generally used in the State of Assam as hair oil and, therefore, Shalimar Coconut Oil would be tre....
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....ithstanding anything contained in sub-section (1) or sub-section (2) of section 19 an assessment, re-assessment or consumption (sic) to give effect to any order to direction in appeal, revision or reference, may be made at any time before the expiry of two years from the end of the year in which the order in appeal, revision or reference is communicated to the Assessing Officer. Since the Commissioner of Taxes, Assam order was communicated to this office on 21st Nov, 2006, the assessment for the year 1999-2000, 2000-01 & 2001-02 will become time barred on 31.03.2009. So, you are hereby asked to produce books of accounts of the above mentioned years on or before 26.02.2009 failing which the assessment would be done u/s 17(5) of AGST Act, CST Act read with sec. 108 of the AVAT Act." 23. From a careful reading of the aforesaid notice, it is seen that the clarification given by respondent No. 2 on 21.11.2006 has been treated to be an order passed in reference within the meaning of section 19(3) of the AGST Act and, therefore, it has been contended that the limitation period in computing assessment stood extended by a further period of 2 years from the end of the year in which ....
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....imitation for the purposes of sub-section (1) or sub-section (2), the period during which the assessment proceeding is stayed by an order or injunction of any court or other authority, shall be excluded and such proceeding may be completed within one year from the end of the year in which the stay was vacated as if the limitation period had not expired." 25. From a careful reading of section 19, it is seen that no assessment could be made under section 17 of the AGST Act after expiry of 3 years from the end of the year in respect of which or part of which the assessment is made. In other words, under section 19(1) of the AGST Act, for the assessment year 1999-2000, the limitation period would expire on 31.03.2003 and for the assessment year 2000-2001, the limitation period would expire on 31.03.2004. It is not necessary to delve into the other part of sub-section (1) or the proviso thereto or sub-section (2), since no defence has been put up by the respondents on the basis of the said provisions. We may now deal with sub-section (3) of section 19. As per sub-section (3), the limitation period of 3 years under section 19(1) would stand extended by a period of 2 years to give effe....
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..... Section 73A on which some reliance was placed by the respondents deals with the general powers of the Commissioner to issue orders, instructions, directions and clarifications not inconsistent with the provisions of the AGST Act for the purpose of bringing about uniformity in the classification of goods, if it is considered necessary or expedient. Thus, under the AGST Act, there is statutory provision for appeal and revision. But there is no such provision for reference. Can an internal letter of an Assessing Officer to the Commissioner seeking clarification on exigibility of a good to taxation or on the rate of tax be construed as a reference? In our considered view, answer to this question will have to be in the negative inasmuch as in procedural law, the word reference has a definite connotation. 29. Under section 19(3), the word reference is used in conjunction with the words appeal and revision. But as we have seen both appeal and revision are statutorily recognised remedies under the AGST Act, which is not the case with reference. 30. If we look to the Civil Procedure Code, section 113 read with Order 43 thereof, provides for reference to the High Court. By invoking t....