TaxTMI 
TaxTMI 
2022 (12) TMI 264
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....ly, Writ Petition (T) No.77 of 2017 in respect of Assessment Year 2010-11, Writ Petition (T) No.78 of 2017 in respect of Assessment Year 2011-12 and Writ Petition (T) No.79 of 2017 in respect of Assessment Year 2012-13. Identical prayers were made in the writ petitions except the change in the Assessment Year. It would be appropriate to extract the prayers made in Writ Petition (T) No.77 of 2017 : "10.1 That, this Hon'ble Court may kindly be pleased to quash to Instruction No.12/2013 dated 05.07.2013 (P/2) issued by the Commissioner respondent No.2. 10.2 To quash the re-assessment orders dated 26.12.2016 for the period 2010-11 passed by the respondent No.3. 10.3 To hold that notification No.17 is not applicable on the petitioner. 10.4 To hold that re-assessment proceeding is without jurisdiction as well as based on change of opinion. 10.5 To hold that no penalty is leviable on the petitioner. 10.6 To hold that entire purchases cannot be classified as "telecommunication cables and accessories" in view of the specific purchase list filed by the petitioner. 10.7 Any other relief, including the cost of this petition, as....
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....en as a preliminary objection before the Competent Authority and the Competent Authority was under an obligation to answer the same one way or the other, and accordingly, disagreed with the view expressed by the Division Bench, whereby the appellants were directed to take recourse to statutory remedy of appeal. 9. The writ petitioner is a Private Limited Company incorporated under the provisions of the Companies Act, 1956 and engaged in providing telecommunication services to its customers under a license granted to it by the Department of Telecommunication. It is pleaded that under Section 3(2) of the Entry Tax Act, 1976 (for short, 'Entry Tax Act'), a person is liable for tax only in respect of notified goods i.e. "telecommunication cables and its accessories" and items like telecommunication equipments / components are not accessories to the telecommunication cables, and hence, cannot be subjected to tax under Section 3(2) of the Entry Tax Act. 10. However, the Commissioner, Commercial Tax issued Instruction No.12/2013 dated 05.07.2013 to all the Executive Authorities of the Department to levy entry tax on all such telecom companies who are purchasing and causing e....
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....o have been made, if a registered dealer submits return along with prescribed documents. He has urged that for the purpose of taking recourse to Section 22 of the VAT Act, it is not necessary that there has to be an order of assessment and recourse can be taken under Section 22 of the VAT Act on the basis of the date of deemed assessment under Section 21(2) and the view taken by the learned Single Judge that to invoke jurisdiction under Section 22(1) of the VAT Act or to initiate proceedings for re-assessment, there must be an order duly passed by the assessing officer, is not correct. Relying on Rules 20(d) of the Chhattisgarh Value Added Tax Rules, 2006, for short, the VAT Rules, it is submitted by him that the date of acknowledgment to be obtained by him for submission of return shall be deemed to be the date of deemed assessment, as, if the acknowledgment is not obtained, in terms of Rule 20(e), it would be deemed that no return had been filed. The writ petitioner had furnished annual statement for the Assessment Years 2010-11, 2011-12 and 2012-13 on 30.11.2011, 30.11.2012 and 11.12.2013, respectively and as such, the said dates are to be treated as dates of deemed assessment, ....
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....lars given in the return or returns are not correct insofar as they relate to the application of the correct rate of tax, the calculation of tax or interest payable or claim of any deduction and input tax rebate, he shall by issuing a notice in the prescribed form require such dealer to make the payment of the additional amount of tax and/or interest payable by him within the period specified in such notice. 19. Before proceeding further, it would be appropriate to extract relevant provisions, namely, Sections 21(1), 21(2), 21(3), 21(4), 21(7) (i), 21(7)(ii), 21(7)(iii), 22(1), 22(2) and 22(3) of the VAT Act for better appreciation: "21. Assessment of tax.-(1) The assessment of every registered dealer shall be made separately for every year: Provided that - (a) the Commissioner, may, subject to such conditions and restrictions as may be prescribed, assess the tax due from any dealer for any part of a year; (b) a registered dealer who claims a refund of input tax rebate under the provisions of sub-section (4) of Section 13,- (i) in his return for any quarter of a year and makes an application for that purpose, along with such return or....
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....n 24; or (ii) to produce evidence or have it produced in support of the returns; or (iii) to produce or cause to be produced accounts, registers; cash memoranda or other documents relating to his business; (b) The Commissioner, after hearing the registered dealer or his agent and examining the evidence produced in compliance with the requirements of subclause (ii) or sub-clause (iii) of clause (a) and such further evidence as he may require, shall assess or reassess him to tax. xxx xxx xxx xxx xxx xxx (7) (i) The assessment in respect of a registered dealer referred to in clause (a) of sub-section (4) shall be made within a period of two calendar years from the end of the period for which the assessment is to be made; (ii) The assessment in respect of a dealer referred to in clause (b) of sub-section (6) for any period shall be made within a period of two calendar years from the end of such period; and (iii) In respect of a dealer, under clause (a) of sub-section (6) shall be made within a period of one calendar year from the commencement of proceedings under the said sub-section : Provided that- (a....
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....here the omission leading to assessment or re-assessment made under sub-section (1) is attributable to the dealer, in addition to interest at the rate specified in sub-clause (iii) of clause (a) of sub-section (4) of Section 19, impose upon him a penalty not exceeding twice the amount of tax so assessed or re-assessed but shall not less than one and half times of the amount of tax assessed. (3) The assessment or re-assessment under sub-section (1) shall be made within a period of two calendar years from the date of commencement of the proceedings under the said sub-section." 20. Section 21(1) of the VAT Act provides that the assessment of every registered dealer shall be made separately for every year. Section 21(2) provides that 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 revised ret....
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....years from the end of the period for which the assessment is to be made. It is also not in dispute that re-assessment order was passed in terms of Section 22(1) of the VAT Act. 23. Section 22(1) of the VAT Act, amongst others, provides that where the assessment or re-assessment of a dealer has been made under the VAT Act and for any reason any sale or purchase of goods liable to be taxed under the VAT Act or the Act repealed by this Act during any period, (a) has been under assessed or has escaped assessment, or (b) has been assessed at a lower rate or (c) any wrong deduction has been made while making the assessment, or (d) a rebate of input tax has incorrectly been allowed while making the assessment, or (e) is rendered erroneous and prejudicial to the interest of revenue consequent to or in the light of any judgment or order of any Court or tribunal which has become final, the Commissioner may at any time within a period of five calendar years from the date of order of assessment or from the date of judgment or order of any court or tribunal proceed in such manner as may be prescribed, to assess or re-assess, as the case may be the tax payable by such dealer after making such....
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....ing officer resulting into deemed assessment by virtue of the provisions contained in Section 21(2) of the VAT Act which was reassessable under Section 21(3) of the VAT Act within a period of one calendar year at the instance of the Commissioner on selection being made by him. Thus, the jurisdictional fact and condition precedent for invoking Section 22(1) of the VAT Act i.e. the order of assessment was not in existence on the date of issuing notice for reassessment under Section 22(1) of the VAT Act. Therefore, the learned assessing officer was jurisdiction-less to initiate proceeding for reassessment under Section 22(1) of the VAT Act and the order of reassessment ultimately passed is without jurisdiction and without authority of law and dehors the provisions contained in Section 22(1), as such, it deserves to be quashed. 37. This leads me to the next question as to whether the penalty imposed invoking Section 22(2) of the VAT Act is sustainable. Section 22(2) of the VAT Act provides that the commissioner shall, where the omission leading to assessment or reassessment made under sub-section (1) is attributable to the dealer, impose upon him a penalty not exceeding twice ....
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....dar 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...." 4. It is crystal clear therefrom that it applies only if an assessment has already been made and there has been under-assessment or escaped assessment therein. In a case where there has been no assessment, as in the case before us for the assessment years in question, the provisions of Section 19 do not apply and cannot be invoked." 28. Mr. Vikram Sharma sought to distinguish the aforesaid judgment contending that in the aforesaid case, question of deemed assessment has not fallen for consideration and therefore, the aforesaid judgment is not applicable to the facts and circumstances of the case. The submission is without any merit. The question is what is the meaning to be ascribed to the "date of order of assessment" and "assessment or re-assessment of a dealer has been made" as appearing in Section 22 of the VAT Act. We are in accord with the view taken by the learned Single Judge. The provisions as noticed above make it abundantly clear tha....