2016 (11) TMI 612 - HC - VAT and Sales Tax

Validity of the order of assessment - sustainability of the order of attachment to his Bank Account - the tax due, as determined in the assessment order dated 13.3.2015 remain unpaid and uncleared - whether the notice dated 27.1.2015 has been delivered to the assessee, at the address recorded in the certificate of registration or not? - Held that - there appears to be some tenability behind the assertion of the writ petitioner/appellant/dealer that he has not received the pre-assessment notice and for want of knowledge, he did not participate in the assessment proceedings and that he has also not received the assessment order for him to be described to be a defaulter. Further we find that from the copies of the Tax Deduction at Source certificates, nearly around ₹ 60 lakhs of tax has already been deducted and transmitted and therefore there appears to be some basis behind the assertion of the assessee that he is not liable to pay taxes in addition and if only an opportunity of participation is accorded, he will be able to produce the original TDS certificates and establish that tax liability already stood discharged by him. The ends of the justice would be better served, if we provide an opportunity to the appellant/assessee to participate in the assessment proceedings. Hence, we set aside the order of assessment dated 13.3.2015 passed by the respondent and remit the matter back for consideration afresh.

Summary

Issues:
1. Validity of the assessment order made by the assessing officer.
2. Sustainability of the order of attachment to the Bank Account.
3. Notice delivery to the assessee.
4. Participation in assessment proceedings.
5. Tax Deduction at Source certificates.

Issue 1: Validity of the assessment order
The appellant challenged the validity of the assessment order made by the assessing officer on 13.3.2015. The appellant argued that they were not provided with any notice or opportunity before the assessment order was passed. The appellant claimed that no notice was received prior to the assessment order, and there was a dispute raised regarding the difference between purchase and sale values for the assessment year in question. The court found merit in the appellant's assertion that they were not informed of the assessment order and had not received the notice dated 27.1.2015, which led to their non-participation in the assessment proceedings.

Issue 2: Sustainability of the order of attachment to the Bank Account
The appellant also contested the sustainability of the order of attachment to their Bank Account passed by the assessing officer on 3.6.2015 due to the unpaid tax as per the assessment order. The court noted that around ?60 lakhs of tax had already been deducted and transmitted based on Tax Deduction at Source certificates. The court found that there was a basis for the appellant's claim that they were not liable to pay additional taxes and that providing an opportunity for participation in the assessment proceedings would allow them to demonstrate the discharge of tax liability.

Issue 3: Notice delivery to the assessee
The court examined whether the notice dated 27.1.2015 had been delivered to the appellant at the address recorded in the registration certificate. The court observed that the government pleader could not confirm the delivery of the notice to the registered office of the dealer. The court emphasized that non-receipt of the show cause notice could not be equated to deliberate avoidance of participation in the assessment proceedings.

Issue 4: Participation in assessment proceedings
The court acknowledged the appellant's claim that they did not receive the pre-assessment notice and therefore did not participate in the assessment proceedings. The court set aside the assessment order and remitted the matter back for fresh consideration, providing the appellant an opportunity to participate in the assessment proceedings and present original TDS certificates to establish tax liability discharge.

Issue 5: Tax Deduction at Source certificates
The court highlighted the reliance on Tax Deduction at Source certificates issued by public sector organizations in the past and the importance of considering these certificates in determining tax liability. The court emphasized the need for the assessing officer to consider the original TDS certificates provided by the appellant during the reassessment process.

In conclusion, the court allowed the appellant to participate in the assessment proceedings, set aside the assessment order, and directed the appellant to appear before the assessing officer with all relevant documents to facilitate a fresh assessment.