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2018 (12) TMI 1161 - HC - VAT and Sales TaxTime limitation for making assessment - service of order - Levy of entry tax - suppressed purchasers of sugar brought side from local area - UP VAT Act - Held that - There is no explanation in the counter affidavit as to why the modes of service of the orders as prescribed under Rule 72 of the U.P. VAT Rules was not observed for serving of the order by the Department. There being no explanation in the counter affidavit for nonobserving any of the modes of service of order as prescribed under Rules and the Circulars the irresistible conclusion is that the order was antedated - the impugned orders for Assessment Year 2013-14 U.P. and Assessment Year 2013-14 Entry Tax passed by the Deputy Commissioner, Commercial Tax, Sector-8, Meerut (respondent no. 1) both dated 28.10.2016 and served on 13.9.2017 is quashed as being beyond the prescribed period of limitation provided under Section 29 sub-section 6 of the U.P. Value Added Tax Act - petition allowed.
Issues Involved:
1. Validity of the assessment orders for the Assessment Year 2013-14 under the U.P. Value Added Tax Act and Entry Tax Act. 2. Compliance with the limitation period under Section 29(6) of the U.P. Value Added Tax Act. 3. Allegations of antedating the assessment orders. 4. Proper service of assessment orders as per prescribed rules and circulars. Issue-wise Detailed Analysis: 1. Validity of the assessment orders for the Assessment Year 2013-14 under the U.P. Value Added Tax Act and Entry Tax Act: The petitioner challenged the assessment orders dated 28.10.2016 for the Assessment Year 2013-14 under the U.P. Value Added Tax Act and Entry Tax Act, which were served on 13.9.2017. The orders were initially passed ex parte on 31.7.2015, creating liabilities of ?20,37,183/- and ?2,10,000/- towards entry tax. These orders were reopened on the petitioner's application, and fresh orders were passed on 29.3.2016 without giving the petitioner an opportunity for a hearing. Subsequently, the orders were reopened again under Section 32 of the U.P. Value Added Tax Act on 30.6.2016, and a show cause notice was issued on 28.9.2016. The petitioner contended that the final assessment orders were passed beyond the prescribed limitation period. 2. Compliance with the limitation period under Section 29(6) of the U.P. Value Added Tax Act: Section 29(6) stipulates that a fresh order of assessment or reassessment must be made before the expiry of the assessment year in which the original order was set aside. The ex parte assessment order was set aside on 30.6.2016, requiring the fresh assessment to be completed by 31.3.2017. The petitioner argued that the assessment orders served on 13.9.2017 were beyond this limitation period, suggesting that the orders were antedated to 28.10.2016 to circumvent the statutory limitation. 3. Allegations of antedating the assessment orders: The petitioner alleged that the assessment orders were antedated to 28.10.2016 to overcome the limitation period. The orders served on 13.9.2017 lacked the usual computer-generated code, indicating they were not generated in the typical manner. The petitioner also pointed out that the Department failed to explain the delay in serving the orders, further supporting the claim of antedating. The petitioner relied on the Supreme Court's judgment in State of Andhra Pradesh vs. Ramakishtaiah and Co., which established a presumption against the validity of orders served long after their purported date without proper explanation. 4. Proper service of assessment orders as per prescribed rules and circulars: The petitioner argued that the Department did not follow the prescribed modes of service under Rule 72 of the U.P. VAT Rules and Circular No. 1424 dated 23.4.2017. The rules mandate various methods for serving orders, including electronic delivery and personal service, none of which were adhered to in this case. The respondents' counter affidavit failed to provide a satisfactory explanation for the delay or the non-compliance with service rules, leading to the conclusion that the orders were antedated. Conclusion: The court found that the assessment orders for Assessment Year 2013-14 under the U.P. Value Added Tax Act and Entry Tax Act were served beyond the prescribed limitation period, supporting the petitioner's claim of antedating. The respondents did not provide a valid explanation for the delay or the non-compliance with service rules. Consequently, the court quashed the impugned orders dated 28.10.2016 and served on 13.9.2017 as being beyond the prescribed period of limitation under Section 29(6) of the U.P. Value Added Tax Act. The writ petition was allowed, and no costs were awarded.
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