TaxTMI 
TaxTMI 
2022 (5) TMI 556
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....nstructions dated 12.2.2019 10125/2019 2008-09 20.02.2019 Impuged notice issued for reassessment based on circular No.3 of 2019 dated 18.01.2019 r/w Joint Commissioner's instructions dated 12.2.2019 10129/2019 2009-10 28.02.2019 Impuged notice issued for reassessment based on circular No.3 of 2019 dated 18.01.2019 r/w Joint Commissioner's instructions dated 12.2.2019 10132/2019 2010-11 28.02.2019 Impuged notice issued for reassessment based on circular No.3 of 2019 dated 18.01.2019 r/w Joint Commissioner's instructions dated 12.2.2019 2. Appearing on behalf of the petitioner, learned counsel for the petitioner submits that this very issue came up for consideration before this Court in the case of Tvl.Victus Dyeings vs. The Assistant Commissioner (ST) in W.P.Nos.20925, 20930, 20932 & 20935 of 2019 dated 29.07.2019. 3. Learned Senior Counsel has placed reliance from paragraph Nos.17 to 23 from the said decision which reads as under:- 17. Therefore, the crux and gravamen of cases on hand is the term 'determine' occurring in Section 27(1)(a) of TNVAT Act. For the purpose of ascertaining the meaning of the term 'determine' occurring i....
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.... Therefore, taking the date of revisional notice as the reckoning date, it is clearly after six years from the date of assessment had elapsed. This Court hastens to add that, to test with exactitude, the date of service of revisional notice on writ petitioner is relevant. In cases on hand the exact date of service has not been set out in the case file, but that pales into insignificance as the very date of revisional notice is beyond the period of limitation. Obviously service of a notice on the notice cannot be prior to the date of the notice itself. Wharton's Law Lexicon Fifteenth Edition, with regard to determine reads as follows: 'Determine, that there may be a lis between the parties and they have to be heard before a final conclusion is arrived at by the Managing Director, S.K.Bhargava Vs. Collector Chandigarh, (1998) 5 SCC 170. 19. Interestingly, P.Ramanatha Aiyar The Law Lexicon- Second Edition and the term 'determine' as occurring therein has been taken recourse to, by a Hon'ble Supreme Court in Ashok Leyland case reported in [2004] 134 STC 473 [Ashok Layland Ltd. Vs. State of Tamil Nadu and another]. To be noted, Ashok Leyland case was rendered by ....
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....ion and the considered view this Court has taken. 23. Impugned assessment orders are set aside and the writ petitions are allowed. There shall be no order as t r as to costs. Consequently, connected miscellaneous petitions are closed. 4. Learned counsel further submits that for the assessment years 2006-07, 2007-08, 2008-09, 2009-10 and 2010-11, earlier assessment orders were passed on 24.09.2010, 18.03.2011 and on 30.06.2012 and thereafter the impugned notices have been issued long after the expiry of limitation prescribed under Section 27 of TNVAT Act, 2006. 5. As far as the Assessment Year 2009-10 and Assessment Year 2010-11 are concerned, the learned Senior Counsel for the petitioner submitted that there was deemed assessment in terms of Section 22(2) of the TNVAT Act, 2006 on 18.03.2011 and 30.06.2012 and therefore, the impugned notices issued beyond the period prescribed under Section 27 of TNVAT Act, 2006 were time barred and were liable to be quashed. 6. Explaining further, the learned Senior Counsel for the petitioner submits that there is a long delay in completing the assessment and therefore the impugned notices seeking to re-open completed assessment are therefore....
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....t and subsequent Notices for these three assessment years were again issued on 30.11.2010. 13. It is further submitted that for the Assessment Year 2009-2010, after the original assessment was completed on 18.03.2011, a notice was issued on 31.03.2011 and for the Assessment Year 2010-2011, the impugned notices was issued on 28.02.2019. 14. It is therefore submitted that since the impugned notices have been issued in continuation of the earlier under Section 27 of the Tamil Nadu Value Added Tax Act, 2006 and they were well within the time limit even in terms of the decision of the Hon'ble Supreme Court in Sales Tax Officer and Another Vs. M/s. Sudarsanam Iyengar and Sons, (1969) 2 SCC 396. 15. A specific reference was made to paragraph Nos.4 & 5 from the said decision which dealt with the scope of Rule 33 of the Travancore- Cochin General Sales Tax Rules, 1950 which according to the petitioner is pari materia with Section 27 of the Tami Nadu Value Added Tax Act, 2006. 16. The learned Additional Government Pleader submits that the above view has not only been followed by this Court but also has been reiterated in Additional Assistant Commissioner of Sales Tax, Indore Region, ....
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....ention of the respondent that the case in one of escaped assessment and the period of limitation contemplated by Section 10 of the Act is applicable to the case. The reason is that once the proceedings for assessment are initiated under Section 8(1)(a) or (b) it cannot be said that the turnover has escaped assessment unless the proceedings have come to a close. In the present case, the proceedings were initiated after the respondent filed to submit a return and the Sales Tax Officer made an order of assessment under Section 8(1)(b) which was set aside by the Commissioner of Sales Tax in revision and the case was remanded back to the Sales Tax Officer for issuing a fresh notice under Section 8(1)(b) and making an assessment after giving an opportunity to the respondent to be heard. The proceedings for assessment have remained pending with the Sales Tax Officer and it is therefore not a case of escaped assessment and the provisions contained in Section 10 of the Act have no application to the case. The question has been the subject-matter of consideration by this court in a recent case - Ghanshyam Das v. Regional Assistant Commissioner of Sales Tax, Nagpur [(1964) 4 SCR 436] . The po....
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....he issues a notice to him under Section 11(2), but does not finalise the assessment; (3) the registered dealer does not submit a return, the Commissioner issues a notice under Section 10(3) and Section 11(4) of the Act; and (4) the registered dealer does not submit any return for any period and the Commissioner issues a notice to him beyond three years. It was held by this court that in the case of a registered dealer the proceedings before the Commissioner start factually when a return is made or when a notice is issued to him either under Section 10(3) or under Section 11(2) of the Act. It was held in the first case that the Commissioner had no jurisdiction to issue a notice under Section 11-A with respect to the quarters other than that covered by the return made by the appellant. In the second case the Commissioner had jurisdiction to assess the turnover in respect of the entire fourth quarter. At p. 450 of the report, the Court observed that in a case where a return has been made, but the Commissioner has not accepted it and has issued a notice for enquiry, the assessment proceedings would be pending till the final assessment is made. The court proceeded to observe that even i....
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....sment Year 2010-2011 may be time barred, but, however, submits that the impugned notices for the respective assessment years were in time in terms of the decisions of the Hon'ble Supreme Court in M/s. Sudarsanam Iyengar and Sons case referred to supra as followed in Firm Jagmohandas Vijay Kumar case referred to supra. 19. The learned Additional Government Pleader for the respondent also submits that the Revenue Department has filed appeal against the order of the learned Single Judge in Tvl. Victus Dyeings case cited by the learned Senior Counsel for the petitioner. He further submits that though the issue in the said case, even on merits, is not applicable to the facts. 20. It is further submitted that in the present case, inspection was carried out on 16.12.2016 which culminated in the report of Enforcement Wing Report being given to the petitioner. 21. It is submitted the during the interregnum, the limitation in the relevant Assessment Year 2007-2008 to 2010-2011 expired after the expiry of the limitation for the first time, the Revenue issued notice on 27.09.2019 and in that context, the learned Single Judge in Tvl. Victus Dyeings case referred to supra concluded that t....
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.... if during the relevant Assessment Years incomplete return are filed provisional assessment would have been made under Section 22 of the Tamil Nadu Value Added Tax Act, 2006. 28. The learned Senior Counsel for the petitioner therefore submits that power to make assessment under Section 22(4) of the Tamil Nadu Value Added Tax Act, 2006 is available only for the period before the expiry of the period for completing the assessment. 29. In these cases, by virtue of operation of Section 27(2) of the Tamil Nadu Value Added Tax Act, 2006, the assessment for the Assessment Year 2010-2011 has been completed on 30.06.2012. It is submitted that before the aforesaid day, the power to invoke Section 22(4) of the Act is available. 30. It is further submitted that once the deemed assessment is made, question of invoking Section 22(4) does not arise at all. The only option is available to the Assessing Authority to issue Notice under Section 27 of the Tamil Nadu Value Added Tax Act, 2006 in case of escaped turnover. 31. It is further submitted that the additional features added in the impugned Notices are beyond the scope of scheme for re-assessment. 32. The learned Additional Government Plea....
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....r reopening of the assessment appears to have been issued. Therefore, the impugned notice dated 28.2.2019 seeking to reopen the deemed assessment completed on 30.6.2012 appears to be time-barred as no notice was issued within time and is therefore liable to be declared as time barred. 38. The decision of this court in W.P.Nos. 20925 of 2019 et cetera batch the case of Tvl.VictusDyings versus The Asst Commissioner (ST) vide order dated 29.7.2019 cited by the learned Senior Counsel is not applicable to the facts of the first four assessment years. In the said case, the notice for revising the assessment was issued for the first time after expiry of limitation as in the case of the petitioner for the assessment year 2010-11. The ratio in the said case at best can be applied for the assessment year 2010-11. 39. The other decision cited by the learned senior counsel for the petitioner do not further the case of the petitioner. Therefore, there is no merits in the challenge to the impugned notices barring notice dated 28.2.2019 for the assessment year 2010-11. 40. Therefore the assessment which was completed long after the period of limitation was held barred by law. This is not the c....