TaxTMI 
TaxTMI 
2022 (10) TMI 6
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....e assessment year 2014-15 and by the order dated 28.8.2017 (Annexure P-1) passed under Section 9 (2) of the Act of 1956 read with Section 22 (1) of the Act of 2005, respondent Department reassessed tax and held petitioner liable to pay an amount of Rs.1,97,87,694/- towards tax, interest and penalty. 3. Subject matter in WPT No.162/2018 is the assessment year 2013-14 and challenge is to the order dated 28.8.2017 (Annexure P-1) whereby respondent Department exercising powers under Section 9 (2) of the Act of 1956 read with Section 22 (1) of the Act of 2005, reassessed tax and held petitioner liable to pay an amount of Rs.2,99,14,429/- towards tax, interest and penalty. 4. As all the above writ petitions are filed by same registered dealer and the order under challenge of reassessment is with respect to different assessment years, the grounds raised in writ petitions are one and the same, hence, these petitions were heard together and are being disposed of by this common order. 5. Petitioner company is a registered dealer under the Act of 2005 and is engaged in the business of manufacturing and selling 'pan masala'. Petitioner company is having its Head Office at Kanpur (UP) ....
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....hat this Hon'ble Court may deem fit." 6. Mr. Neelabh Dubey, learned counsel for the petitioner in all three writ petitions would submit that during course of business the petitioner made inter-state sale of pan masala product manufactured at the unit in Rajnandgaon (CG) to purchasing dealer located in Delhi. At the time of purchase, the purchasing dealer produced declaration in Form-C issued by the Department of Trade and Taxes, Government of NCT, Delhi for the relevant period i.e. 4th Quarter 2014-15. Based on Form-C submitted by purchasing dealer, sales tax was assessed and deposited with respondent Department on 14.6.2016. Petitioner received notice for initiating re-assessment proceedings based on investigation report received vide letter of respondent No.2 dated 24.3.2017. In re-assessment proceedings initiated by respondent No.3-Assistant Commissioner, Commercial Tax, Rajnandgaon (CG), without considering reply to show-cause notice submitted by petitioner mentioning that status of purchasing dealer in official website of respondent Department has been shown as 'active', therefore, the petitioner sold goods manufactured by it and charged tax at the reduced rate considering ....
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....nd Form-C for the year 2014-15 was not issued. Similarly, registration of M/s Bharti was also cancelled, whereas registration of M/s Ganga Enterprises was deleted. Hence, respondent authority has rightly passed the order impugned and revisional authority has not erred in dismissing revision petition filed by petitioner under Section 49 (1) of the Act of 2005. She further contended that order impugned is appellable under Section 48 of the Act of 2005, therefore, present writ petition is not maintainable in view of availability of efficacious alternative remedy to the petitioner. 8. I have heard learned counsel for the parties and perused the documents available on record. 9. As regards the ground raised by learned counsel for the respondent State that order impugned is appellable under Section 48 of the Act of 2005, therefore, writ petition is not maintainable. The Hon'ble Supreme Court in case of Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai reported in (1998) 8 SCC 1 while considering the issue/objection on maintainability of writ petition under Article 226 of the Constitution of India, has held that alternative remedy not to operate as a bar in atleast three co....
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.... (b) a registered dealer who claims a refund of input tax rebate under the provisions of sub-section (4) of Section13,- (i) in his return for any quarter of a year and makes an application for that purpose, along with such return or before the date on which the return for the subsequent quarter becomes, due; or (ii) in his returns for a year and makes an application for that purpose before the date on which the return for the first quarter of the subsequent year becomes due,the assessment of such dealer for that quarter or year,as the case may be shall be made in accordance with the provisions of sub-section (4) within a period of three months from the date of receipt of the application. (2) Where a registered dealer other than the registered dealer referred to in the proviso to sub-section (1) has furnished,- (i) all the returns for a year and/or; (ii) revised return for any quarter or quarters of such year, in the prescribed manner and within the prescribed time or before the date on which the return for the first quarter of the subsequent year becomes due, (iii) has paid the tax payable according to such returns or re....
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.... (d) (i) has not maintained any accounts; or (ii)the accounts maintained by him are not in accordance with the provisions of sub-section (1) of Section 41; or (iii) has not regularly employed any method of accounting ; or (iv)the method employed is such that in the opinion of the Commissioner assessment cannot properly be made on the basis thereof. (6) xxxxxxxxx (7) xxxxxxxxx (8)Notwithstanding anything contained in sub-section (7), where assessment or re-assessment proceedings in respect of any dealer relating to any period cannot be completed before the expiry of the period specified herefore in the said sub-section, the State Government, may by notification, for reasons to be recorded in writing, extend the period for the completion of such assessment proceedings in respect of such dealers by such further period as may be specified in such notification....." 12. Section 22 of the Act of 2005 provides for assessment/ re-assessment of tax in certain circumstances. Relevant provisions of Section 22 are extracted below for ready reference;- "22.Assessment/reassessment of tax in certain circumstances.- ....
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....n 22(1) of the VAT Act is important. The word "order" has not been defined in the VAT Act. The Code of Civil Procedure, 1908 is not applicable in the proceeding of the VAT Act, but aid can be taken from the said Code. Sub-section (14) of Section 2 of the Code of Civil Procedure, 1908 defines, "order" means the formal expression of any decision of a Civil Court which is not a decree". Black's Law Dictionary (Eighth Edition) also defines "order"as under: - "order, n. 1. A command, direction, or instruction. See-MANDATE (1). 2. A written direction or command delivered by a court or judge. ●The word generally embraces final decrees as well as interlocutory directions or commands. - Also termed court order; judicial order. See MANDAMUS. [Cases: Federal Civil Procedure 928;Motions 46, C.J.S. Motions and Orders §§ 1-3, 13, 50, 59.]"An order is the mandate or determination of the court upon some subsidiary or collateral matter arising in an action, not disposing of the merits, but adjudicating a preliminary point or directing some step in the proceedings." 1 Henry Campbell Black, A Treatise on the Law of Judgments § 1, at 5 (2d ed. 1902)."While an order ma....
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....y this fiction beyond its originally intended purpose so as to deem a person in fact lawfully here not to be here at all. 'the intention of a deeming provision, in laying down a hypothesis, is that the hypothesis shall be carried as far as necessary to achieve the legislative purpose, but no further' . 14. The Court has further held that in order to invoke Section 22 (1) of the Act of 2005, there must be an order of assessment by the Assessing Officer in contradistinction to Section 22 (1) of the Act of 2005, which is a deemed assessment. After recording that held, thus the jurisdictional fact and condition precedent for invoking provisions of Section 22 (1) of the Act of 2005 i.e. the order of assessment, was not in existence on the date of issuing notice for reassessment under Section 22 (1) of the Act of 2005. Therefore, the Assessing Officer was jurisdiction-less to initiate reassessment proceedings under Section 22 (1) of the Act of 2005 and the order of reassessment ultimately passed is without jurisdiction and without authority of law and de hors the provisions contained in Section 22 (1) of the Act of 2005, as such, it deserves to be quashed. 15. The aforementioned or....