2024 (3) TMI 2

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....he same will be taken note while assessing the tax at the end of the assessment year. Prior to 19.06.2012, under Section 22 of the TNVAT Act, the assessment in respect of a dealer shall be on the basis of return relating to his turnover submitted in the prescribed manner within the prescribed period. Under sub-section (2) of Section 22 of the TNVAT Act, the assessing authority shall accept the returns submitted for the year, by the dealer, if the returns are accompanied by the proof of payment of tax and the document prescribed, and on such acceptance, the assessing authority shall pass an assessment order. 2. According to the appellant, under this provision, he had been regularly filing his returns every years since 2006-2007 to 2011-2012. Subsequent to the amendment to Section 22 of the TNVAT Act, which provides for a deemed assessment and procedure to be followed by the assessing authority, the proviso to sub-section (2) of Section 22 of the TNVAT Act has been inserted, provided that in respect of returns submitted for the years 2006-2007, 2007-2008, 2008-2009, 2009-2010 and 2010-2011, on which assessment orders are not passed, shall be deemed to have been assessed on the 30t....

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....ntended that the order passed by the fourth respondent is a colourable exercise of power and wrongful interpretation of the Statute. The amendment to Section 22 of the TNVAT Act cannot be given retrospective effect by giving an extended period of limitation to revise the assessment already made. To butress his argument, the learned counsel tried to draw analogy with the ruling of the Hon'ble Supreme Court in State of Punjab and others vs. Bhajan Kaur and others reported in 2008 (12) SCC 112, wherein the Hon'ble Supreme Court has held that Section 6 of the General Clauses Act, saves a right accrued and/or a liability incurred in case of any amendment or substitution of the Statute. Any right conferred to the parties under the new Act will have only prospective effect unless and until it is stated otherwise. This observation was made in connection with the new Motor Vehicles Act, 1988, Section 140 vis-a-vis the old Motor Vehicles Act, 1939, Section 92-A. 8. The learned Additional Government Pleader representing the State submitted that in case of any returns filed for the years 2006-2007 to 2010-2011, on which no assessment order is passed, it shall be deemed that the retu....

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....ection 6 or Section 8 has escaped assessment from the tax, the assessing authority may, at any time within a period of six years from the date of assessment determine to the best of its judgment the turnover which has escaped assessment and re-assess the tax payable on the total turnover including the turnover already assessed under the said section. (2) Before making the re-assessment under sub-section (1), the assessing authority may make such enquiry as it may consider necessary and give the dealer concerned a reasonable opportunity to show cause against such reassessment. (3) The amount of tax already paid by the dealer concerned in pursuance of the option to compound under sub-section (4) of Section 3 or Section 6 or Section 8 shall be adjusted towards the amount of tax due as the result of reassessment under sub-section (1). (4) The provisions of sub-sections (3) to (8) of Section 27 shall, as far as may be, apply to reassessment under subsection (1) as they apply to the reassessment of escaped turnover under sub-section (1) of Section 27.'' 12. The prayer in the Writ Petitions is to issue Writ of Certiorari calling for the records pertai....

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.... permitted. In this connection, the following decisions can be usefully referred to: 1) (2010) 4 SCC 772 (Rajkumar Shivhare vs. Assistant Director, Directorate of Enforcement and another). 2) (2005) 2 MlJ 246 DB (M/s.Nivaram Pharma Private Limited rep. by its Director Sardarmal M.Chordia, Madras vs. The Customs, Excise and Gold (Control) Appellate Tribunal, South Regional Bench, Madras and others. 3) (2010) 8 SCC 110 (United Bank of India vs. Satyawati Tondon and others. 4) 2010 (259) ELT 37 (Mad) DB (Maritime Collector vs. Madura Coats Limited). 5) (2010) 4 SCC 554 (Rajeev kumar and another vs. Hemraj Singh Chauhan and others) 3. The very same view was already taken by me in W.P(MD)No.1409 of 2015 dated 05.02.2015 to dismiss the same by following the above said decisions on the ground that the writ is not proper remedy, when the alternative remedy by way of filing an appeal is available to the petitioner therein. It is not the case of the petitioner herein that he was not put on notice or that the authority, who passed the order of assessment, is not having the jurisdiction. On the other hand, the competent authority has passed....

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....ahindra and Mahindra Ltd. [cited supra] will apply to the case in hand. 18. This Court is also duty bound to record that the amendment brought to the TNVAT Act through the Amendment Act 23 of 2012 is with respect to self assessment return and to review such returns even if no order is passed as deemed to be assessed. While giving benefit of deeming fiction to the assessee, the interest of the revenue also been protected by making suitable amendment to Section 28 of the TNVAT Act, enabling the assessing authority to revise the assessment and make best judgment assessment. At the same time, the assessing authority while exercising the power under Section 28 of the TNVAT Act is expected to cause notice and give an opportunity to the assessee to ensure the principle of natural justice is adhered. 19. Section 22(2) and amendment to Section 28 of the TNVAT Act to be read together to understand the intention of the legislature. The returns filed prior to 19.06.2012 under the self assessment scheme, but no explicit assessment orders are passed in these cases. By introducing the deeming clause, the assessee gets the privilege of assessment. At the same time, to prevent escaped assessm....