TaxTMI 
TaxTMI 
2025 (6) TMI 436
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....e issue, arising in the present proceeding is noticed as under:- The petitioner had submitted its return of turnover under the provisions of Central Sales Tax Act, 1956, for the assessment years 2015-16, 2016-17 and 2017-18 and paid the tax as per the return. After submission of the said returns, the respondent authorities herein vide a notice bearing No. 95, issued invoking the provisions of Section 9 (2) of the Central Sales Tax Act, 1956 (herein after the Act of 1956) read with Section 40 of the Assam Value Added Tax Act, 2003 (herein after referred as the Act of 2003), informed the petitioner that the returns filed by it for the period 2016-17 and 2017-18, under the Act of 1956, were selected for audit assessment under Section 9 (2) of the Act of 1956 read with the provisions of Section 36 of the Act of 2003 and accordingly, required it to appear in-person or through an authorized agent and produce evidence or have it produced in support of the returns. Further, the petitioner was required to produce or caused to be produced, accounts, registers, invoices and other documents which it is required to maintain and furnish the required declaration and certificates in terms of the....
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....rities had quoted the provision of Section 40 only with the view to coverup the expiry of the period of limitation involved in the matter. Mr. Saraf has further submitted that Section 39 of the Act of 2003 mandates that no assessment under the provisions of the Act shall be made after expiry of 5 years from the end of the year to which the assessment so relates. He further submits that the proviso to Section 39 would not stand attracted to the case of the petitioner, inasmuch as, no prosecution has been initiated against it in the matter. 6. Mr. A. Saraf, by referring to the provisions of Section 40 of the Act of 2003 has submitted that the pre-conditions requisite for exercise of power under Section 40 of the Act of 2003 is that a dealer should have been assessed either under Section 34, 35, 36 & 37 of the Act and thereafter, if the Assessing Officer has a reason to believe that the whole or any part of the turnover had escaped assessment; or has been under assessed; or has been assessed at a rate lower than a rate at which it is assessable; or has been wrongly allowed any deduction thereof; or being allowed wrongly any credit therein, it would be permissible for the Assessing Of....
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....), the same shall be accepted and such assessment shall be deemed to have been made for the purpose of sub-section (1) of Section 35 of the Act of 2003. 12. Mr. Gogoi, learned counsel, by referring to the notice dated 11.04.2023 has submitted that on account of a typographical error occasioning in the first paragraph of the said notice, Section 36 of the Act of 2003 came to be reflected instead of Section 40 of the Act of 2003. However, in the subject of the said notice, it was reflected that the notices were being so issued under Section 9 (2) of the Act of 1956 read with Section 40 of the Act of 2003. Mr. Gogoi submits that a quotation of a wrong provisions shall not take away the jurisdiction of the authorities to carry out its enquiry as mandated under the provisions of the Act of 2003. Mr. Gogoi submits that the assessment of the petitioner for the years in question, having been completed in terms of the provisions of Section 35 (2) of the Act of 2003, the re-assessment made therein by invoking the provisions of Section 40 of the Act cannot be denoted to be erroneous. He further submits that the period of limitation of 5 years as provided under provisions of Section 39 of the....
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.... tax may be assessed separately for each year during which he is so liable; Provided that, the Commissioner may, subject to such conditions if any, as may be prescribed, assess the tax due from any dealer during a part of a year and the other provisions of this section shall be construed accordingly. (2) If a dealer has filed all the tax returns and the annual return or revised returns in the prescribed manner and within the prescribed time and has paid the tax payable according to such returns or revised returns and also interest payable if any, the returns or revised returns so filed shall be accepted and his assessment shall be deemed to have been made for the purpose of subsection (1) subject to adjustment of any arithmetical error apparent on the face of the said return; Provided that the assessment under this sub-section of every such registered dealer who is required to furnish audit report under section 62 shall be deemed to have been made if such dealer has furnished the audit report along with the annual return." ii) Section 39 of the ACT, 2003 provides that "39. No assessment after five years.- no assessment under the foregoing provisions of this Act, shal....
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....ment made for the said years in respect of the petitioner herein, have to be deemed to have been completed in terms of subsection (1) of Section 35 of the Act of 2003. 22. The provisions of Section 39 of the Act of 2003 mandates that no assessments under the provisions of Section 35 and 36 shall be permissible to be made after the expiry of 5 years from the end of the year to which the assessment relates. Although, the proviso to Section 39 of the Act of 2003 culls out an exception in cases of offence under the Act, for which proceedings for prosecution has been initiated; wherein, it mandates that the period of limitation shall not apply. However, the proviso would have no application to the issue arising in the present proceedings. 23. A perusal of the materials brought on record would reveal that within the period of limitation as mandated under the provisions of Section 39 of the Act of 2003, the respondent authorities had not initiated any audit assessment under the provisions of Section 36 of the Act of 2003 with regard to the returns submitted by the petitioner under the provisions of sub-section (2) of Section 35 of the Act for the years 2015-16, 2016-17 and 2017-18. 24.....
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....e was so issued for carrying out an audit assessment in terms of the provisions of Section 36 of the Act of 2003; and it is to be seen as to whether such assessment could have been made in the matter. In terms of the provisions of Section 39 of the Act of 2003, the period of limitation for carrying out audit assessment under the provisions of Section 36 of the Act, i.e. for the years2015-16, 2016-17 and 2017-18 had lapsed on 31.03.2021, 31.03.2022 and 31.03.2023 respectively. Accordingly, this Court is of the considered view that the audit assessment sought to be made, invoking the provisions of Section 36 of the Act of 2003, vide issuance of the notice dated 11.04.2023, was clearly barred by limitation. 26. Having drawn the above conclusions, the contention of Mr. B. Gogoi, learned Addl. Advocate General, Assam, appearing for the State respondents that the notice dated 11.04.2023 was so issued, invoking the powers under Section 40 of the Act of 2003 and the incorporation of Section 36 in the first paragraph of the said notice was on account of a typographical error only, is being examined. 27. A perusal of the provisions of Section 40 of the Act of 2003 would go to reveal that w....
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....f 2003 is the stipulation that the Prescribed Authority has 'reason to believe'. 31. The decisions of the Hon'ble Supreme Court, relied upon by the learned Senior Counsel appearing on behalf of the petitioner, lays down that 'reason to believe' postulates belief and the existence of reasons for that belief. The belief must be held in good faith; it cannot be merely a pretence. The expression does not mean a purely subjective satisfaction of the assessing officer; the forum of decision as to the existence of reasons and the belief is not in the mind of the assessing officer. If, it be asserted that the assessing officer had reason to believe that income had been underassessed by reason of failure to disclose fully and truly the facts material for assessment, the existence of the belief and the reasons for the belief, but not the sufficiency of the reasons, will be justifiable. The expression therefore predicates that the assessing officer holds the belief induced by the existence of reasons for holding such belief. It contemplates existence of reasons on which the belief is found, and not merely a belief in the existence or reasons inducing the belief; in other words, the assessing....