AI Drafter 
TaxTMI 
TaxTMI 
2022 (8) TMI 696
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....ircumstances of the case, was the appellate tribunal justified in law, in dismissing the appeals filed by the petitioner and holding that the limitation prescribed in Section 7-A of the Act could not be applied to an assessment passed under Section 6(3) of the Act? 2) Whether on the facts and in the circumstances of the case, was the appellate tribunal was justified in holding that the provisions pertaining to re-assessment cannot be applied to an assessment when computing the period of limitation especially when the word "assessment" would take into its connotation a "re-assessment" in the comprehensive sense? 3. The petitioner is a Members Club providing various facilities to its members and is registered under the provisions of the Act. Assessments were concluded for the assessment years in questions under Section 6(3) of the Act vide orders dated 28.2.2014. Orders were passed imposing penalty and interest under Sections 7 and 5-A(2-A) of the Act. Being aggrieved, the assessee had preferred appeals before the first appellate authority, who confirmed the orders of the assessing authority insofar as tax and interest is concerned, modified the penalty levied under Secti....
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.... Government Advocate argued that the intelligence wing has inspected the assessee's premises and had submitted the records; at the time of inspection conducted on 17.5.2007, on noticing that no tax liability was discharged as required under law, a detailed notice under Section 13(1)(b) of the Act was issued and served on the assessee. In response to the said notice, the assessee - club has filed its objections. However, the assessee had discharged the tax liability. The intelligence report dated 24.4.2008 was forwarded to the assessing officer with the covering letter dated 29.12.2012. The assessing officer, thereafter issued the proposition notice dated 12.2.2014 and final assessment orders were passed on 28.2.2014. 7. Learned counsel submitted that during the relevant period, levy of tax under Section 3-D of the Act was under litigation. The Division Bench has rendered the judgment in the case of Commissioner of Commercial Taxes, Gandhinagar, Bangalore and ors., v. Hennur-Banaswadi Cosmopolitan Club, Bangalore, reported in (2011) 42 VST 99 (Karn), on January 19, 2011, allowing the writ appeals filed by the department setting aside the interpretation placed by the learned Singl....
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....sed." 11. The undisputed facts are, inspection was conducted by the enforcement wing on 17.5.2007; taxes were paid by the assessee on 22.5.2007, 30.7.2007, 1.10.2007 and 21.2.2008; proposition notice was issued by the assessing officer on 12.2.2014; assessment orders were passed under Section 6(3) of the Act on 28.2.2014; there was no deferment order or stay order passed by the Courts to conclude the assessments. The constitutional validity of Section 3-D of the Act which provides for levy and collection of tax on luxury provided in a Club to the members who are required to pay any amount as fee, deposit, donation or any other such charges by whatever name called, was challenged by some institutions/clubs. The learned Single Judge vide order dated August 20, 2008, has upheld the constitutional validity, however interpreted the levy under Section 3-D, to be on the basis of utilization of the facilities by the members of the Club. Being aggrieved by the said interpretation, the revenue has preferred writ appeals insofar as the learned Single Judge holding that Section 3-D does not stipulate any levy on mere existence of the facility and the tax is leviable only on the member who u....
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....onths on the basis of the available material. 14. In the case of Filter Co. supra, the Hon'ble Apex Court while examining the assessments concluded under Section 19 of the Madhya Pradesh General Sales Tax Act, 1958, has observed that the said provision would apply only if an assessment has already been made and there has been under assessment or escaped assessment therein. The relevant portion of said Section 19 reads thus; "Where an assessment has been made under this Act or any Act repealed by Section 52 and if for any reason any sale or purchase of goods chargeable to tax under this Act or any Act repealed by Section 52 during any period has been under assessed or has escaped assessment or assessed at a lower rate or any deduction has been wrongly made therefrom, the Commissioner may, at any time within five calendar years from the date of order of assessment, after giving the dealer a reasonable opportunity of being heard and after making such enquiry as he considers necessary, proceed in such manner as may be prescribed to reassess...." 15. The said provision i.e., Section 19 itself had made it very clear that, where an assessment has been made under the said Ac....