2020 (7) TMI 417 - HC - VAT and Sales Tax

Validity of assessment order - time limitation - case of the petitioners is that notices/assessment orders are beyond limitation as prescribed under section 29(4) of the Act - HELD THAT - As per section 29(1), if any amount is found due on the basis of return filed, an intimation is to be sent to the person specifying the sum payable then the same shall be deemed as demand notice. The first proviso to sub- section (1) states that acknowledgment of the return shall be deemed to be intimation under the sub-section either that no sum is payable or no refund is due. Sub-section (2) provides for best judgment assessment in the circumstances prescribed in clauses (a) to (e). As per sub-section (3), the Commissioner on his own motion or on an information received can order framing of an assessment by designated officer by any person or any class of persons for the period prescribed. Sub-section (4) provides limitation for making assessment under sub-section (2) or sub-section (3) - it is evident that during the relevant time the limitation prescribed for making the assessment was within three years from the date when the annual statement was filed or was due to be filed, whichever was later. The said provision was amended and the period was extended to six years. In the Explanation added, it was clarified that the period of six years would apply to those cases in which the period of six years had not yet expired. Thus, we are not considering the issue as to whether the amended period of limitation of six years would apply to the present cases or not. We are proceeding by assuming that there was period of six years from the date of filing of the annual statement or when it was due. The facts are not disputed, admittedly the notices are beyond limitation and it is in these circumstances that interference is made in the writ petitions. The impugned notices/assessment orders are set aside - Petition allowed.

Issues Involved:
1. Quashing of impugned notices/assessment orders being time-barred.
2. Applicability of amended limitation period under Section 29(4) of the Punjab Value Added Tax Act, 2005.
3. Validity of notices issued under Section 29(2) beyond the prescribed limitation period.
4. Alleged fraud and misrepresentation in finalizing assessment orders.

Issue-wise Detailed Analysis:

1. Quashing of Impugned Notices/Assessment Orders Being Time-Barred:
The writ petitions sought the quashing of notices/assessment orders for the assessment years 2008-09 to 2010-11, issued in 2019, claiming they were time-barred as per Section 29(4) of the Punjab Value Added Tax Act, 2005. The court noted that the limitation period for making assessments was initially three years from the date the annual statement was filed or due. This was later amended to six years. However, all notices were issued beyond this six-year period, making them time-barred.

2. Applicability of Amended Limitation Period Under Section 29(4) of the Punjab Value Added Tax Act, 2005:
The court discussed the amendment to Section 29(4), which extended the limitation period to six years. The amendment clarified that this six-year period would apply to cases where the previous limitation period had not yet expired. For the assessment years in question, the annual statements were to be filed by November 20, 2011, and the six-year period expired on November 19, 2017. Since the notices were issued in 2019, they were beyond the amended limitation period.

3. Validity of Notices Issued Under Section 29(2) Beyond the Prescribed Limitation Period:
The respondents argued that the notices were issued under Section 29(2) due to fraud or misrepresentation. However, the court observed that the notices were issued beyond the six-year limitation period. The reliance on a memo dated July 30, 2018, directing officers to issue statutory notices as per the Act’s provisions, did not justify the delayed notices. The court emphasized that the notices under Section 29(2) were not in consonance with the Act’s provisions, as they were issued beyond the prescribed limitation period.

4. Alleged Fraud and Misrepresentation in Finalizing Assessment Orders:
The respondents claimed that the assessment orders were finalized and computer entries were made fraudulently. They relied on Section 29(7), which allows for amending an assessment order within three years if fraud, misrepresentation, or escaped assessment is discovered. However, the court noted that no action had been initiated under Section 29(7) despite the reliance on this provision. The court also highlighted that the Commissioner has supervisory powers under Section 65 to initiate revision proceedings. The court concluded that the contention of fraud did not enhance the respondents' case, as no specific action was taken under the relevant provisions.

Conclusion:
The court found that the notices and assessment orders were issued beyond the prescribed limitation period and were therefore time-barred. The impugned notices/assessment orders were set aside. However, the respondents were given the liberty to proceed against the petitioners in accordance with the law if so advised. The writ petitions were allowed, except for one petition kept pending for the respondents to file a status report on various aspects of the matter, considering the magnitude of the alleged fraud.

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