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2023 (10) TMI 1078
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....yog. From the facts narrated in the writ petition, it transpires that the Petitioner had filed the Annual Return of Turnover in the prescribed format i.e. Form-14 in respect of its sales and purchase transactions for the Financial Year 2013-2014 before the Respondent No. 4 i.e. the Superintendent of Taxes, Unit-C, Guwahati. 4. It has been stated in the writ petition that pursuant to the filing of the return by the Petitioner, the Respondent No. 4 completed scrutiny assessment of the same under Section 33 of the Assam Value Added Tax Act, 2003 (for short "the Act of 2003") wherein it was determined by the Respondent No. 4 that the Petitioner was liable to pay interest of 286 and penalty of Rs. 2,000/-. On the basis of the same, the Petitioner paid a sum of Rs.2,286/- vide Challan No.117 dated 04.01.2016. The further case of the Petitioner is that on 11.05.2017, the Respondent No. 4 had issued a notice under Section 36 of the Act of 2003 to the Petitioner. The contents of the said notice are relevant for the purpose of instant dispute. The said notice which was enclosed as Annexure-E to the writ petition is in Form-20. In the said notice, the Respondent No. 4 informed the Petition....
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....eived the certified copy of the assessment order dated 21.12.2017 on 20.09.2021. 6. At this stage, this Court finds it relevant to take note of that from a perusal of the assessment order dated 21.12.2017, it reveals that the Respondent No. 4 had not allowed any Input Tax Credit to the Petitioner on the purchases made by the Petitioner. WP(C)/5219/2021 7. The instant writ petition relates to the financial year 2014-15. For the sake of brevity and to avoid prolixity, this Court is not repeating the facts which are similar to the facts which have already been mentioned while dealing with the facts in WP(C) No. 5223/2021. However, the relevant facts for the purpose of the instant case are that the Petitioner submitted its return in the prescribed format i.e. in Form-14 in respect to the sales and purchase in the financial year 2014-15 before the Respondent No. 4. Subsequent to the filing of the return for the financial year 2014-15, the Respondent No. 4 completed scrutiny assessment of the same under Section 33 of the Act of 2003 wherein it was determined by the Respondent No. 4 that the Petitioner had paid an excess tax of Rs. 25/- only and the Petitioner was liable to pay i....
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....f the same under Section 33 of the Act of 2003 wherein it was determined by the Respondent No. 4 that the Petitioner was liable to pay interest of Rs. 1,461/-. As stated above, the notice dated 11.05.2017 was for the period from 2012-13 to 2014- 15. For the sake of brevity as well as to avoid prolixity, this Court is not repeating the contents of the said notice. Be that as it may, the Petitioner through his son as well as the authorized representatives produced all the relevant invoices/books of accounts/registers in respect of the return filed by the Petitioner for the Assessment Year 2012-13 to the satisfaction of the Respondent No. 4. 11. During the end of August, 2019 the Petitioner received a demand notice dated 21.12.2017 from the Respondent No. 4 which was issued on 10.08.2019 whereby the Petitioner was informed that the Respondent No. 4 had raised the demand to the extent of Rs.23,480/- in respect of the return filed for the Assessment Year 2012-13 out of which the balance tax payable was assessed at Rs.18,480/- and the penalty payable was assessed at Rs.5,000/-. The Petitioner thereupon applied for the certified copy of the assessment order dated 21.12.2017. The said c....
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.... of the Act of 2003. He further submitted that even assuming for argument sake that the impugned assessment orders were under Section 36(5) of the Act of 2003, then also such assessment could have been made only after issuance of notice upon the Petitioners as it is the mandate of proviso to Section 36(5) that the Assessing Authority cannot rely on any evidence collected by him without affording a reasonable opportunity of being heard before any adverse inference is drawn. The learned counsel further explained the powers under Section 36(5) to make assessment and under Section 37 of the Act of 2003. The learned counsel submitted that as the Petitioner had submitted his return and the scrutiny assessment were already done, Clause (a) and (c) of Section 36(5) would not be applicable. As regards Clause (b) of Section 36(5), it is the submission of the learned counsel for the Petitioner that the assessment to be made is only the amount of tax due from the dealer by setting aside the self assessment made under Section 35 of the Act of 2003. The learned counsel submitted that while in Section 36(5)(b) of the Act of 2003, the assessment would be in respect of the amount of tax due from th....
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....s notices of demand were issued on 10.08.2019 for the Assessment Year 2012-13 and on 02.07.2019 for the assessment year 2013-14, the same have to be construed that the said assessment orders were passed beyond the period prescribed under Section 39 of the Act of 2003. In that regard, the learned counsel has drawn the attention of this Court to two judgments of the Supreme Court in the case of Assistant Transport Commissioner, Lucknow Vs. Nand Singh reported in (1979) 4 SCC 19 and State of Andhra Pradesh Vs. M. Ramakishtaiah and Company: Khetmal Parekh reported in 1994 (93) STC 406. 17. Mr. B. Choudhury, the learned Standing counsel for the Finance and Taxation Department submitted that in the notice dated 11.05.2017, it was duly mentioned that if the Petitioner failed to appear and produce the evidence, the Petitioner would render itself liable to be assessed to the best of the judgment of the Assessing Authority without further giving notice to the Petitioner. Under such circumstances, it is the submission of the learned Standing counsel of the Finance and Taxation Department that no further notice was required as contemplated under Section 37(1) of the Act of 2003. On the ques....
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...., the scrutiny of returns were made by the Respondent No. 4 and the Petitioner thereupon had corrected the said defects and submitted new correct and complete return within the period specified in the notice with the evidence of payment of due amount of tax and interest as directed. 20. Section 34 relates to Provisional Assessment. The Provisional Assessment can be made by the Prescribed Authority for the period of default to the best of his judgment in circumstances when a dealer fails to furnish a tax return before the due date or if the tax return furnished by the dealer appears to the Prescribed Authority to be incorrect and incomplete or if the dealer fails to furnish a correct and complete return with evidence of the payment of tax and interest, if any, under Sub-Section (2) of Section 33 of the Act of 2003. It is a mandate under Section 34 that prior to initiating any proceedings for provisional assessment, the dealer has to be given a reasonable opportunity of being heard. It is however relevant to take note of that in terms with Sub- Section (4) of Section 34, the power conferred upon the Prescribed Authority under Section 34 shall not prevent the Prescribed Authority f....
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....o appear on a date and place specified therein, which may be in the business premises or at a place specified in the notice, to either attend and produce or cause to be produced the books of account and all evidence on which the dealer relies in support of his returns including tax invoice, if any, or to produce such evidence as specified in the notice. For this purpose, the Prescribed Authority may also undertake tax audit of stock-intrade of the dealer. (2) The dealer shall provide full co-operation and assistance to the Prescribed Authority to conduct the proceedings under this section at his business premises. (3) If the proceedings under this section are to be conducted at the business premises of the dealer and it is found that the dealer or his authorized representative is not available or is not functioning from such premises, the Prescribed Authority shall assess to the best of his judgment the amount of tax due from him. (4) If the Prescribed Authority is prevented by the dealer from conducting the proceedings under this section, the Prescribed Authority may demand, a sum not exceeding the amount of tax so assessed, by way of penalty. (....
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....instant case on 11.05.2017 would show that the said notice was issued in Form-20. Taking into account its relevance, the contents of the said notice is quoted hereinunder: "ASSAM VALUE ADED TAX RULES, 2005 FORM-20 [See Rule 22(4)] NOTICE UNDER SECTION 36 OF THE ASSAM VALUE ADDED TAX ACT, 2003 To Name Shri/M/s Vishal Udyog Address Solapara Guwahati __________________ TIN No.18770028579 Whereas the returns(s) filed by you for the period from 2012-13 to 2014-15 has/have been selected for audit assessment under sub-section (1) of section 36 of the Assam Value Added Tax Act, 2003 and it has become necessary to make an assessment under sub-section (5) of that section in respect of the above mentioned period. So, you are hereby required to (i) appear in person or through an authorized agent; and (ii) produce evidence or have it produced in support of the returns; (iii) produce or cause to be produced accounts, registers, invoices or other documents which you are required to maintain and furnish declarations and certificates you are required to furnish under the Assam Value Added Tax Act, ....
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....ade under Section 35. The proviso to Sub-Section (5) of Section 36 stipulates that if the Prescribed Authority proposes to rely on any evidence collected by him, the dealer shall be afforded a reasonable opportunity of being heard before any adverse inference is drawn. 28. Therefore, a perusal of said Section stipulates that issuance of a notice in Form-20 in respect to those categories coming within the ambit of Sub-Rule (1) of Rule 22 and subject to the stipulations contained in Clauses (a) to (d) of Sub-Section (1) of Section 36. The notice which would be issued in Form-20 shall specify the date and place which may be in the business premises or at a place specified in the notice, to either attend and produce or cause to be produced the books of accounts and all evidence on which the dealer relies in support of his returns including tax invoice, if any, or to produce such evidence as specified in the notice. It is very pertinent herein to mention that while Sub Section (3) of Section 36 empowers the Prescribed Authority to assess to the best of his judgment the amount of tax due from the dealer, Sub-Section (5) of Section 36 only stipulates the power either to confirm the sel....
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....nt; and (ii) produce evidence or have it produced in support of the returns; (iii) produce or cause to be produced accounts, registers, invoices or other documents which you are required to maintain and furnish declarations and certificates you are required to furnish under the Assam Value Added Tax Act, 2003 or the rules made thereunder relating to the aforesaid period along with any other relevant evidence on which you may wish to rely in support of the returns filed by you or any objection which you may wish to raise in relation to these proceedings at _______ (Place) _______ (time) _______ (Date). 2. Please take notice that in the event of your failure without sufficient cause to comply with this notice, you will render yourself liable to be assessed to the best of my judgment without further notice to you. Signature____________ Prescribed Authority Seal of Prescribed Authority" 31. At this stage, this Court finds it relevant to take note of that there is a marked difference between Form-20 and Form-21. While in Form 20, it has been mentioned that the return filed by an assessee for a particular period have been ....
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....asis of the turnover of the dealer which have already been ascertained whereas in the case of Section 34 and 37, the Prescribed Authority can not only assess the tax due from the dealer but also assess the turnover of the dealer. This aspect of the matter is clear from a reading of Clauses (a) to (d) in Sub-Section (1) of Section 36 with that of Clauses (a) to (d) of Sub-Section (1) of Section 37. In the backdrop of the above, let this Court deal with the facts of the instant cases. 34. In respect to the Assessment Years ending 2012-13 and 2014-15, it would be seen that the Respondent No. 4 had determined the turnover or in other words enhanced the turnover and on the basis of which had made the assessment. This power was not available to the Respondent No. 4 under Section 36 of the Act of 2003 though such power was available under Section 37 of the Act of 2003. But in order to take steps to exercise the power under Section 37, notice under Sub-Section (1) of Section 37 has to be issued. Admittedly, there was no notice issued under Sub-Section (1) of Section 37 in respect to the Assessment Year 2012-13 and 2014-15 for which the assessment order dated 21.12.2017 impugned in the W....
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....ssessment under the foregoing provisions of this Act, shall be made after the expiry of five years from the end of the year to which the assessment relates: Provided that in case of offence under this Act for which proceedings for prosecution has been initiated, the limitation as specified in this sub-section shall not apply." 37. From a perusal of the above quoted Section, it would show that the assessments which are carried out under the provisions of Sections 34, 35, 36 and 37 have to be completed within 5 years from the end of the year for which the assessment relates. Both the assessment orders dated 21.12.2017 relates to the period 2012-13 and 2013-14. Under such circumstances, for the Assessment Year 2012-13, the last date for completion of the assessment was 31.03.2018 and for the Assessment Year 2013-14, the last date for completion of the assessment was 31.03.2019. The impugned assessment orders dated 21.12.2017 on the face of it are within the period stipulated in Section 39 of the Act of 2003. But the question which arises is as to whether the noncommunication of the assessment orders to the Petitioner with the prescribed period would render the Assessment O....
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....y in the sense of making it known, which may make it possible for the authority to say that the party affected must be deemed to have known the order. In a given case, the date of putting the order in communication under certain circumstances may be taken to be the date of the communication of the order or the date of the order but ordinarily and generally speaking, the order would be effective against the person affected by it only when it comes to his knowledge either directly or constructively, otherwise not. On the facts stated in the judgment of the High Court, it is clear that the respondent had no means to know about the order of the Taxation Officer rejecting his prayer until and unless he received his letter on October 29, 1964. Within the meaning of S. 15 of the U. P. Motor Vehicles Taxation Act that was the date of the order which gave the starting point for preferring an appeal within 30 days of that date." 39. In the case of M. Ramakishtaiah and Company (supra), the Supreme Court was dealing with a case whereby the Deputy Commissioner was required to pass the order within four years of the order of assessment. The Deputy Commissioner though had stated that he had pa....