TaxTMI 
TaxTMI 
2024 (8) TMI 842
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.... The facts of the case are that on 08.07.2021, the assessing authorities issued notice to the petitioner under Section 40 of the said Act, 2003 stating that they have reason to believe that the turnover of the petitioner's business assessable to tax for the assessment period from 2014 - 2015 has escaped assessment as the petitioner has failed to deposit VAT on transmission charge amounting to Rs. 1,00,95,562/- as the same was clearly part of the sale price and therefore proposes to re-assess the petitioner for the aforesaid period under Section 40 of the Assam Value Added Tax Act, 2003 read with Section 9 of the Central Sales Tax Act, 1956 and Section 174 of the Assam Goods and Service Tax Act, 2017. 4. The petitioner was given an opportunity to show-cause by appearing person or through its representative on or before 17.07.2021. 5. Thereafter the assessing authorities by order dated 05.03.2022 re-assessed the petitioner under Section 40 of the Act, 2003 and came to a finding that the petitioner is liable to pay Rs.1,93,84,631/- as penalty. 6. Accordingly, notice of demand was issued on 05.03.2022 by the respondent No.3 to the petitioner for making payment of Rs.1,93,84,63....
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....1) Every registered dealer and every dealer liable to pay tax shall furnish a correct and complete tax return in such form for such period, by such dates and to such authority, as may be prescribed; Provided that different periods may be prescribed for different classes of dealers for the purpose of filing tax return. (2) Every registered dealer and every dealer liable to pay tax shall furnish, in addition to the tax return, if any, furnished under sub-section (1), a correct and complete annual return in the prescribed form within such time as may be prescribed. (3) If the Prescribed Authority has reason to believe that the turnover of sales or the turnover of purchases of any dealer has exceeded the taxable limit as specified in sub-section (6) of section 7, so as to render him liable to pay tax under this Act for any year or part thereof, he may, by notice served in the prescribed manner, require such dealer to furnish tax return under sub-section (1) and an annual return under sub-section (2) as if he were a registered dealer. (4) If any dealer having furnished a tax return or an annual return under this section, discovers any omission or any ....
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....such dealer has furnished the audit report along with the annual return." iii) Section 39 of the ACT, 2003 provides that "39. No assessment after five years.- no assessment 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 subsection shall not apply." iv) Section 40 of the ACT, 2003 provides that "40. Turnover escaping assessment: (1) Where after a dealer is assessed under section 34, 35, 36 or 37 of this Act for any year or part thereof, the Prescribed Authority has reason to believe that the whole or any part of the turnover of the dealer in respect of any period has,- (a) escaped assessment; or (b) been under assessed; or (c) been assessed at a rate lower than the rate at which it is assessable; or (d) been wrongly allowed any deduction therefrom; or (e) been wrongly allowed any credit therein. The Prescribed Authority may, after giving the dealer a reason....
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....statement of the quantity of goods imported in the manner laid down in such scheme." Amendment: Sub-rule (2B) has been inserted vide notification No. FTX.29/ 2003/25 dated 4-11-2006 w.e.f. 14-11-2006. (3) The tax return shall be accompanied by a receipt from the Designated Bank, a crossed cheque or a crossed demand draft for the full amount of tax payable on his taxable turnover during the month or the quarter to which the return relates. Explanation - For the purpose of Explanation 2 to clause (b) of subsection (1) of Section 10, the challans for payment of tax received by a bonded warehouse from a retail licence holder or by a excise warehouse from a retail vendor, shall also form part of the full amount of tax payable on the taxable turnover of such bond or warehouse for the month to which the tax return relates. (4) If the amount paid by a dealer along with the tax return under sub-rule (1) or (2) or (2A) or (2B), is less than the amount of tax payable by him, the Prescribed Authority shall serve a notice of demand and the dealer shall pay the sum demanded in the said notice within the time and in manner specified in the notice. Amen....
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.... Prescribed Authority shall serve on such a dealer a notice in Form-15 requiring him to furnish such return within such date as may be specified in the notice. (8) In case of discovery of any omission or any other error in the tax return or annual return filed, the dealer may furnish a revised tax return or the revised annual return, as the case may be, within a period of six months from the due date of submission of tax return or annual return, as the case may be : Provided that, no revised tax return or revised annual return shall be entertained if the case has been taken up for audit assessment and notice to that effect has already been served on the dealer. (9) Omitted. Amendment: Sub-rule (9) has been omitted vide notification No. FTX. 29/2003/25 dated 4-11-2006 w.e.f. 14-11-2006. Prior to its omission, it read as under: "(9) A dealer, opting for composition scheme under Section 20, shall be liable to pay tax quarterly. Such dealer shall make the payment by challan into a Designated Bank within twenty one days of the succeeding month from the date of expiry of each quarter." 11. Section 29 of the Act, 2003 provides that every dealer has t....
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.... CST III 01/03/2015 31/03/20 15 Original 13/05/2015 21/04/2015 13. It is thus evident that the monthly returns for the annual year 2014 - 2015 was not submitted within the 21st day of the succeeding month, in other words, it was not submitted within the time prescribed under 17 (1) of the said Rules, 2005, which is within next 21 days of the succeeding months. 14. Reference is made to the decisions of the Division Bench of this Court in the case of Indian Oil Corporation Limited Vs. State of Assam & Others reported in (2013) 60 VST 185 Gau, wherein it has been held that when the time limit for completion for assessment has been indicated and after expiry of the said period no assessment can be made. 15. Reference is also made to the decision of the Division Bench of this Court in the case of Indian Oil Corporation Limit Vs. State of Assam in WP(C) No. 4745 of 2009, wherein it has been held that after expiry of the prescribed period of assessment, no assessment can be made. 16. Reference is made to the decision of the Apex Court in the case of Shyam Das Vs. Regional Assistant Commissioner Of Sales Tax Nagar reported in 1964 vol. 4 SCR at page 436, wherein....
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....e provisions of the said Act. 21. Section 40 of the Act, 2003, dealing with turnover escaping assessment provides that whenever a dealer is assessed under the said provision, three preconditions are to be fulfilled; i. Firstly, a dealer must have been assessed under section 34, 35, 36 or 37 of the act for any year or part thereof. ii. Secondly, the assessing authority must have reason to believe that the whole or any part of the turnover of the dealer in respect of any period has escaped assessment or has been under assessed or has been assessed at a rate lower than the rate at which it is accessible or has been wrongly allowed and deduction therefrom or has been wrongly allowed credit therein. iii. Thirdly, if the prescribed authority has such reasons to believe then the prescribed authority has to give reasonable opportunity of being heard, and after making enquiries, proceed to assess to the best of his judgment, the amount of tax due from the dealer in respect of such turnover. 22. It is abundantly clear from the above reading of the said provision that in order to re-assess under Section 40 of the Act, 2003, there has to be firstly an assessmen....