2015 (5) TMI 338 - HC - VAT and Sales Tax

Whether the Tribunal has erred in not appreciating that the assessment order passed under Section 41 (7) of the Sales Tax Act would not be governed by the time limit prescribed under Section 42 (1) of the Act - Held that - For applying the time limit as provided under Section 42(2) of the Act, the condition precedent is issuance of notice under subsection 6 of the 41 of the Act, and only, thereafter the question of applying time limit of eight years or four years may arise. But not in a case where no notice under Section 41(6) of the Act has been issued. Therefore, all assessment barring the assessment made after issuance of the notice under Section 41(6) of the Act, would stand covered by the provisions of Section 42(1) of the Act for the time limit within which the assessment has to be completed. The second reason is that subsection 6 of Section 41 of the Act does not include the contingency of non filing of the return, but rather the basic requirement is that the registration is not obtained or the person who has failed to apply the registration within the time prescribed. In any event as observed by us herein above, Section 41(7) is no independent mode of assessment but rather a step in furtherance to the assessment which is applicable to both type of assessment, either under Section 41(3), 41(4) and also 41(5) of the Act as well as for Section 41(6) of the Act. It cannot be said that merely because a mode was undertaken under Section 41(7) of the Act, the limitation provided under Section 42(1) of the Act for completing the assessment, would not be applicable. It is hardly required to be stated that even in case where the assessment is to be made, the examination of books of accounts or the consideration of books of accounts will be one of the aspects, to be considered before finalising the assessment. If the appropriate books of accounts are maintained, the details of return can be verified, but if not maintained, and the conditions are satisfied, subsection 7 of Section 41 of the Act may be invoked. But thereby, it cannot be said that such is an independent mode of assessment. Further, Section 42 of the Act recognizes only two type of assessment, one in a case where the notice under subsection 6 of the Section 41 has been issued and the another assessment would be under Section 41(3) or 41(4) with 41(5) of the Act. - Tribunal has not committed error in holding that the assessment was barred by Section 42(1) of the Act - Decided against Revenue.

Summary

Issues Involved:

1. Whether the Tribunal erred in not appreciating that the assessment order passed under Section 41(7) of the Sales Tax Act would not be governed by the time limit prescribed under Section 42(1) of the Act.
2. Whether the Tribunal erred in not appreciating that the time limit prescribed under Section 42(1) of the Act is only for those cases wherein the return as prescribed is filed and not to the cases where the returns were not filed within the prescribed time limit or were not at all filed.

Issue-wise Detailed Analysis:

Issue 1: Applicability of Time Limit under Section 42(1) to Assessments under Section 41(7)

The core question was whether the Tribunal erred in not recognizing that assessment orders under Section 41(7) of the Sales Tax Act are exempt from the time limits set by Section 42(1). The court examined the mechanism of assessment under Section 41, which includes various subsections for different scenarios like incomplete returns (Section 41(3)), non-compliance with notices (Section 41(4)), and non-filing of returns (Section 41(5)). Section 41(7) allows for best judgment assessments when the dealer has not employed any regular method of accounting or when proper assessment cannot be made based on the dealer's accounts.

The court noted that Section 42(1) prescribes a three-year time limit for assessments under Sections 41(3), 41(4), and 41(5), starting from the end of the year in which the last return is filed. The court rejected the argument that Section 41(7) creates an independent mode of assessment exempt from this time limit. Instead, it held that Section 41(7) is a procedural step applicable to assessments under Sections 41(3), 41(4), and 41(5), and thus, the time limit of Section 42(1) applies.

Issue 2: Time Limit Applicability to Non-Filing of Returns

The second issue was whether the time limit under Section 42(1) applies only to cases where returns are filed and not to cases where returns were not filed within the prescribed time or not at all. The court clarified that Section 42(1) applies to all assessments under Sections 41(3), 41(4), and 41(5), which include scenarios where returns are not filed. The court dismissed the argument that assessments under Section 41(7) are exempt from the time limit, emphasizing that Section 41(7) is not an independent mode of assessment but a part of the broader assessment process.

Conclusion:

The court concluded that the Tribunal correctly held that the assessment was barred by the limitation period prescribed under Section 42(1). The court affirmed that the time limits apply to all assessments under Sections 41(3), 41(4), and 41(5), including those involving best judgment assessments under Section 41(7). The appeals and special civil applications were disposed of accordingly, with no order as to costs.