2019 (3) TMI 935 - HC - VAT and Sales Tax

Revision of assessment - Deemed assessment - Section 22(2) of the TNVAT Act, 2006 - non-speaking order - principles of natural justice - change of opinion - Held that - The observation made in the impugned orders for passing the reassessment order is nothing but change of opinion without any new material being brought on record, which has come to the knowledge of the respondents and the said action cannot be permitted under the law. The reassessment proceeding must be based on some material and not on mere suspicion. The Assessing Authority must have some material, on which it forms its opinion and the same should not be arbitrary, irrational, vague or irrelevant. In the absence of such material, the action taken by the respondents cannot be sustained - The case in hand, the reassessment proceedings and the consequential assessment order have been passed only on presumption and conjectures, which is not permissible under the law. A Division Bench of this Court in the case of G.V.Cotton Mills (P) Ltd., vs., the Assistant Commissioner (CT) 2018 (3) TMI 1617 - MADRAS HIGH COURT has held that the right of personal hearing to the assessee is mandatory even if the assessee fails to submit objections to the pre-assessment notice. The impugned order dated 07.09.2017 passed by the respondent no. 2, granting permission to reopen the completed assessment, as well as the consequential ex parte reassessment order dated 31.03.2018 for the Assessment Year 2009-10 passed by the respondent no. 3 are liable to be quashed being tantamount to change of opinion, which is not permissible under the law - petition allowed.

Summary

Issues:
Challenging reassessment proceedings under U.P. Tax on Entry of Goods into Local Area Act, 2007 for Assessment Year 2009-10.

Analysis:
The petitioner, engaged in civil construction work, opted for compounding under U.P. Value Added Tax Act, 2008. The respondent passed a best judgment assessment under Entry Tax Act, enhancing cement purchase by ?15 Lacs and imposing entry tax of ?30,000. The first appellate authority upheld this assessment. No appeal was filed against this decision.

The respondent initiated reassessment proceedings by granting permission to reassess the petitioner in an extended period of limitation. The petitioner objected, arguing no new material justified reopening. The reassessment order was passed ex parte, challenged through an amendment application allowed by the Court.

The Court observed that the reassessment was based on a change of opinion without new material, contrary to legal principles. Citing State of Uttar Pradesh v. Aryaverth Chawal Udyog, the Court emphasized the need for a nexus between the change of opinion and new material. The reassessment lacked a valid basis, being founded on presumption and conjecture.

Consequently, the Court quashed the impugned orders, finding them tantamount to impermissible change of opinion. The writ petition succeeded, leading to the quashing of the permission to reopen the completed assessment and the consequential reassessment order for the Assessment Year 2009-10.