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2021 (12) TMI 282 - HC - VAT and Sales TaxRevival of second composite ex-parte assessment order - by composite order dated 18.07.2014 the third ex-parte assessment order had been framed against the petitioner - mistake apparent on the face of record or not - Section 31 of the U.P.V.A.T. Act, 2008 - HELD THAT - Considering that language of the proviso to Section 6 of the Land Acquisition (Amendment) Act, 1894 and the complete absence of any statutory remedy of appeal etc. provided against a declaration made under Section 6 of the Act, the Supreme Court reasoned - it was a distinctive feature viz-a-viz Section 132(5) read with Section 132 (11) of the Income Tax Act, 1961. It was held, under the Income Tax Act, a power existed to remit a case to the original authority or, for a fresh order to be passed. Thus, besides the distinction arising on account of lack of consent or waiver granted by the petitioner (in that case), it was recognized, even otherwise, the period of limitation may survive in the context of a proceeding under Section 132 (5) of the Income Tax Act. It cannot be disputed, the petitioner had a remedy of appeal against the orders dated 16.08.2016. Therefore, it also cannot be further disputed, if those appeals had been filed, the appellate authority would have been within its jurisdiction to set aside the orders dated 16.08.2016 on a reasoning similar to that adopted by this Court, in its order dated 21.02.2017. The consequence of such a finding would naturally be - the matter would have been remitted to the assessing authority to pass a fresh order. Merely because the petitioner chose to approach this Court under Article 226 of the Constitution of India against the order dated 16.08.2016, it can never be said, the petitioner was entitled to any better or other relief or rights - In the present case, undisputedly, the prior notices leading to the orders dated 16.08.2016 were issued well within time. Those were not quashed by this Court in Writ Tax No. 97 of 2017. Such notices were therefore valid. Thus, the jurisdiction had been exercised within time prescribed by law. It is not found that the proceedings instituted by notice dated 29.05.2017 or the consequent order dated 28.07.2017 to be lacking in inherent jurisdiction, on account of the bar of limitation. Validity of second ex-parte order - HELD THAT - If the second or any subsequent ex-parte assessment order was set aside (under Section 32 of the Act), on or before 30th September of an Assessment Year, the limitation to pass a fresh assessment order thereafter, would exist up to 31st March of that Assessment Year. If, however, the order to set aside the second or the subsequent ex-parte assessment order was passed on or after 1st October of an Assessment Year, the limitation to pass the fresh assessment order would stand extended up to 30th September of the next Assessment Year. There is nothing in the language of Section 32 and/or Section 29(6) of the of the Act as may be read to introduce a time limit on the power of the assessing authority to deal with and/or allow an otherwise validly filed application. In the instant case, it is not even alleged by the revenue that the application filed by the petitioner to recall the ex parte order dated 18.09.2013 was filed beyond thirty (30) days of that order being served. Therefore, it may be safely assumed that that application was filed in time. Consequently, it had to be dealt with and decided on its own merits, unaffected by any other or further consideration of limitation to frame a fresh assessment order. Thus, both for reason of grammar as also to keep the provision workable, the interpretation made by the assessing authority and as canvassed by the learned Standing Counsel cannot be accepted. An interpretation that makes the provision unworkable or leads to absurd results must always be rejected. In view of the above, we find that the assessing authority had not committed any mistake less so a mistake apparent on the face of record in passing the order dated 22.02.2014. The fact that in the instant case the assessment proceedings for A.Y. 2008-09 (U.P., Central and, Entry Tax) became time barred on 30.09.2016 or that no assessment order came to be passed in the case of the petitioner and therefore taxable transactions performed by the petitioner may have remained from being assessed, is of no concern to this Court, in the facts of the present case. In a proverbial cat-andmouse game enacted by the revenue and the taxpayer, the Writ Court sits an umpire. It may be guided strictly by the law alone. Equity has less or no role to play - the fact that revenue has suffered a loss due to an error on its part, falls outside the domain of this Court, in these proceedings. Remedial action lies elsewhere. Petition allowed - decided in favor of appellant.
Issues Involved:
1. Validity of the notice dated 29.05.2017 under Section 31 of the U.P.V.A.T. Act, 2008. 2. Legality of the order dated 21.06.2017 passed by the assessing authority. 3. Limitation period for passing fresh assessment orders under Section 29(6) of the Act. 4. Applicability of principles of natural justice. 5. Jurisdictional and procedural errors in the assessment process. Detailed Analysis: 1. Validity of Notice Dated 29.05.2017: The petitioner challenged the notice dated 29.05.2017 issued under Section 31 of the U.P.V.A.T. Act, 2008, seeking to rectify the order dated 22.02.2014. The court found that the notice was issued within a reasonable time following the court's direction in the earlier writ petition. The notice did not suffer from any lack of jurisdiction or limitation. 2. Legality of Order Dated 21.06.2017: The order dated 21.06.2017 concluded that the order dated 22.02.2014 was time-barred and void-ab-initio. The court held that the order dated 22.02.2014 did not suffer from any mistake apparent on the face of the record. The assessing authority's reasoning that the limitation to recall the second composite ex-parte order was only up to 30.09.2013 was found to be incorrect. 3. Limitation Period for Passing Fresh Assessment Orders: The court discussed the limitation period under Section 29(6) of the Act. It clarified that the limitation to pass a fresh assessment order after setting aside an ex-parte order is up to the end of the assessment year in which the ex-parte order was set aside, or up to 30th September of the next assessment year if the order was set aside after 1st October. The court found that the order dated 22.02.2014 was within the prescribed limitation period. 4. Applicability of Principles of Natural Justice: The court emphasized that the principles of natural justice were violated as the impugned orders were passed ex-parte without giving any opportunity of hearing to the petitioner. The earlier writ petition was allowed on this ground, and the court reiterated the necessity of providing a fair hearing before passing any order. 5. Jurisdictional and Procedural Errors: The court held that the assessing authority did not commit any jurisdictional error in setting aside the ex-parte orders. The interpretation that the limitation to recall an ex-parte order was limited to the balance period surviving on the date of the second ex-parte order was rejected. The court found that there was no statutory limitation on the power to pass an order on an application filed within time under Section 32 of the Act. Conclusion: The impugned order dated 21.06.2017 was quashed as it was based on an incorrect interpretation of the law. The writ petition was allowed, and the court directed that the principles of natural justice be adhered to in future proceedings. The court emphasized strict adherence to the rule of law, indicating that any loss to the revenue due to procedural errors falls outside the court's domain in these proceedings.
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