TaxTMI 
TaxTMI 
2022 (5) TMI 470
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.... convenience they are heard together and taken for final disposal. 3. The Petitioner is a private limited company incorporated under the provisions of Companies Act, 1956. The Petitioner company is indulging into the business of supply of engineering goods. The Petitioner has filed annual return for three financial years i.e. 2002-2003, 2003-2004 and 2004-2005, on 10th February, 2006. The Assessing Officer has passed even dated six assessment orders on 25th March, 2010. Since those were ex-parte assessment orders, the Petitioner by invoking the provisions of Section 33D of the Bombay Sales Tax Act, applied for cancellation of assessment orders in Form No.30AA. The Petitioner's applications for setting aside ex-parte orders, have not been adjudicated for the prolonged period of ten years. However, on 18th January, 2019, Respondent No. 2-State Tax Officer has attached the current and overdraft account of the Petitioner company towards recovery of the dues. The Petitioner repeatedly requested for withdrawal of attachment and for adjudication of his applications for setting aside ex-parte assessment orders. However, the Respondents have neither decided the Petitioner's applica....
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....prescribed condition have been fulfilled, cancel by order in writing, the said assessment including any penalty and interest levied in relation to or in consequence of the said assessment and shall make a fresh assessment in accordance with the provisions of Section 33 including levy of interest and penalty, as the case may be: Provided that, only one application for cancellation shall be entertained under this sub-section in respect of any period of assessment. (2) Notwithstanding anything contained in Section 33, the fresh order of assessment as provided under sub-section (1) may be passed at any time, within a period of eighteen months from the date of service of the cancellation order. " In short, the Commissioner on his satisfaction about the grounds of absence of assessee to attend per-hearing in respect of notice under Section 33(3) of the Act of 1959 can cancel the assessment and make fresh one, provided that application is moved within thirty days from the date of assessment order. 6. It is the Petitioner's grievance that though within the stipulated period of thirty days, he has applied for setting aside the ex-parte orders, however, due to lethargy and negli....
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....rescribed to decide the application filed in Form No. 30AA and for valid reasons, it remained to be decided. Moreover, it is contended that the assessment is open, therefore, the authorities have every right to make assessment. 8. The first contention of the Petitioner is that due to the repeal of Bombay Sales Tax Act as well as Maharashtra Value Added Tax, 2002, the assessment belatedly made in the year 2010, is illegal. It is argued that the action initiated under the Bombay Sales Tax Act, after its repeal, is not saved by the provisions of GST Act. The second ground for impeaching the action is inordinate delay as well as delay in deciding the application filed under Section 33D of the Bombay Sales Tax Act. According to the Petitioner, the assessment orders for the years 2002-2003, 2003-2004 and 2004-2005 are ex-facie time barred. The practical difficulty is pressed into serve that after long gap of sixteen years, it is wholely unjustifiable to ask the Petitioner to produce the accounts for re-assessment. The Petitioner's learned Counsel also argued that the cash credit or overdraft account can not be the subject matter of attachment. 9. In order to substantiate the above ....
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....ondly for giving him right of hearing while making assessment of returns. It was incumbent on the authorities to decide the Petitioner's application in one or other way. It is evident from the communication dated 15th March, 2018 (15th March, 2019) of State Tax Officer that the Petitioner's application for setting aside ex-parte assessment orders were neither allowed nor rejected. Though the Respondents have blamed the Petitioner for not pursuing application, however the sole blame lies on the Respondents in not deciding the application within the reasonable time. In the circumstances, there is no gain saying in leaving it on the authority to adjudicate the application filed in Form No. 30AA of the Act. The affidavit-in-reply is not clear, whether the Petitioner's application under Form No.30AA was lost or otherwise. After lapse of several years, there is no point to leave on the authorities to exercise their discretion under Section 30D to decide the same on factual aspects. 11. Rival submissions are made on the point of delayed action in making assessment. At one side the Petitioner would submit that due to repeal of Bombay Sales Tax Act, though certain actions are s....