2017 (9) TMI 1735

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....s maintained by him are not in accordance with the provisions of sub-section (1) of section 39, or has not regularly employed any method of accounting, or the method employed is such that in the opinion of Commissioner assessment cannot properly be made on the basis thereof, to assess the dealer to the best of his judgment, after issuing notice. (4) Evidently, the impugned order is appelable under section 46 of the Act 2002 and Entry Tax Act of 1976. Sub Section (1) of section 46 provides for that any dealer or person aggrieved by an order passed under the Act 2002, by any officer specified in clause (c) to (f) of sub-section (1) of section 3 may, in the prescribed manner, appeal against such order to the Appellate Authority. Sub-section (5) of Section 46 mandates that no first appeal against an order of assessment, with or without penalty or against an order imposing penalty shall be admitted by the Appellate Authority unless out of the total balance due from the dealer, payment of tax and other amounts admitted by the dealer to be due from him along with, - (i) in case of an appeal against ex parte order, five percent, or (ii) in other cases, ten percent; of the remaining amou....

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.... and 1976 Act for the year 2014-15, viz: (A) The registered dealers having annual turnover upto Rs. 50 Crores during the year 2014-15, but does not included the following :- (1) Such Industrial unit which are eligible to avail of the facility of exemption/deferment of payment of tax/Investment Promotion Assistance under any notification issued by the Govt. of Madhya Pradesh. (2) The dealers in whose cases tax evasion has been detected for the financial year 2014-15. (3) The dealers in whose cases notice has been issued for additional amount of tax under clause (b) of sub-section (5) of Section 18 of the VAT Act and this requirement has not been complied with before submission of application. (4) The dealers in whose cases notice has been issued under sub-section (6) of Section 19, after Tax Audit and this requirement has not been complied with before submission of application. (5) In case refund of any kind is due to him under VAT Act, 2002 or Central Sales Tax Act, 1956 (Act No.74 of 1956) or the Madhya Pradesh Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam, 1976 (Act no.52 of 1976). (B) The registered dealers ha....

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....pulates that with the acceptance of the application under Deemed Assessment Scheme, the registered dealer is exonerated from all other provisions contained under Section 20 of 2002 Act. The Legal fiction attached to assessment under the Scheme that it is treated as assessment under sub-section (1) of Section 20, cannot be extended beyond the purpose for which it is created or beyond the language of Section by which it is created. In this context reference can be had of the decisions in : In Commissioner of Income Tax, Bombay Vs. Shakuntala and others, AIR 1966 SC 719, it is held: (8) ........... The fiction enacted by the Legislature must be restricted by the plaint terms of the statue. We are unable to accept the argument that the principle that a legal fiction must be carried to its logical conclusion requires us to travel beyond the terms of the section or give the expression "shareholder" a meaning which it does not obviously bear." In Commissioner of Income-tax Gujarat Vs. Vadilal Lallubhai etc.etc., AIR 1973 SC 1016, it is observed by their Lordship: "12 ..........As held by this Court in Commr. of Income-tax Bombay City 1 v. Amarc....

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..................It is a well-known principle of construction that in interpreting a provision creating a legal fiction, the court is to ascertain for what purpose the fiction is created, and after ascertaining this, the court is to assume all those facts and consequences which are incidental or inevitable corollaries to giving effect to the fiction. But in so construing the fiction it is not to be extended beyond the purpose for which it is created, or beyond the language of the section by which it is created." (14) In view whereof, the applicability of the provision of Section 20 of 2002 Act is thus not waived. Thus, we find that it was within the competence of the Competent Authority to have exercised its jurisdiction under Section 20(5) of the Act of 2002. And since the order has been passed within the extended time period, we perceive no jurisdictional error as would give right to the petitioner to invoke extraordinary jurisdiction under Article 226 of the Constitution of India. (15) As regard to the contentions that the impugned order is antedated to bring it within the four walls of extended period of limitation, we are of the considered opinion that since the same is a d....

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2017 (9) TMI 1735