2010 (4) TMI 994 - HC - VAT and Sales Tax

Whether the revisional court could remand the matter for passing a fresh order of rectification/ assessment and as a corollary to the same whether the order of assessment amounts to extension of limitation for passing order of rectification? Held that - Once the order has been made within 90 days the aggrieved person has got the right to approach the notified authority under section 132(1) of the then Income-tax Act within 30 days and that authority could direct the Incometax Officer to pass a fresh order. Thus such a fresh order under the directions of the revisional or appellate order were not required to be passed within the period of limitation as prescribed for passing the first order. The learned single judge was absolutely justified in dismissing the petition and affirming the directions issued by the learned Joint Commissioner of Sales Tax and approved by the Board of Revenue

Summary

Issues Involved:
1. Whether the revisional court could remand the matter for passing a fresh order of rectification/assessment.
2. Whether the order of assessment amounts to an extension of limitation for passing an order of rectification.

Issue-wise Detailed Analysis:

1. Remanding the Matter for Fresh Order of Rectification/Assessment:
The appellant, an assessee under the Assam General Sales Tax Act, 1993, challenged the judgment and order confirming the orders of the Board of Revenue and the Joint Commissioner of Taxes. The appellant argued that the initial assessment order was contrary to the principles of natural justice and statutory requirements, thus null and void. The appellant contended that the revisional authority could not remand the matter for a fresh order if the limitation period had expired. The court referred to Section 37 of the Assam General Sales Tax Act, 1993, which allows rectification of mistakes within three years from the end of the financial year in which the order was made. The court concluded that the revisional authority acted within its jurisdiction by remanding the matter for a fresh order, as the initial assessment was made within the limitation period.

2. Extension of Limitation for Passing Order of Rectification:
The court examined whether the remand order extended the limitation for rectification. The appellant cited previous judgments stating that an appellate or revisional authority cannot extend the limitation period. The court distinguished these cases, noting that the initial assessment was made within the limitation period. The court emphasized that judicial proceedings or actions by appellate/revisional authorities should not adversely affect the parties' rights. The court referred to Supreme Court judgments, which held that fresh orders under appellate/revisional directions are not subject to the original limitation period. The court concluded that the remand order did not extend the limitation period, as the initial assessment was timely.

Conclusion:
The court dismissed the appeal, affirming the revisional authority's decision to remand the matter for a fresh order of rectification/assessment. The court held that the revisional authority acted within its jurisdiction and that the remand order did not extend the limitation period for rectification.