2023 (10) TMI 157 - HC - VAT and Sales Tax

Revision of assessment - revision sought on the premise of non-disclosure certain transactions of sales - time limitation - HELD THAT - This Court finds that the submission of the respondent that limitation must be reckoned from the date of assessment i.e., 25.01.2016 is misconceived. The above submission overlooks the fact that in view of the deeming contained in Section 22 of the TNVAT Act the petitioner must be deemed to have been assessed on 31.10.2012. In view thereof, the order dated 25.01.2016 itself is a reassessment traceable to Section 27 of the TNVAT Act. The present proceeding is also traceable to Section 27 of the TNVAT Act. Though exercise of power of assessment / reassessment under Section 27 of the TNVAT Act would not result in exhaustion of the power and it is open to exercise the power vested under Section 27 of the TNVAT Act on more than one occasion - though there is no limitation as to the number of occasions the power of assessment / reassessment under Section 27 of the TNVAT Act may be exercised. However, any such exercise ought to be made within the period of six years from the date of original assessment including deemed assessment as stipulated under Section 27 of the TNVAT Act. The submission of the learned counsel for the respondent that by participating in the assessment proceeding, the petitioner must be understood to have waived his right to question the impugned proceeding which is otherwise barred by limitation, is unsustainable. Since, limitation relates to jurisdiction which cannot be conferred by consent, waiver or acquiescence. The impugned order being barred by limitation is thus a nullity. This Court finds that the impugned proceeding is barred by limitation and thus the impugned proceeding is set aside - Petition disposed off.

Summary

Issues involved:
The judgment deals with the issue of whether the reassessment proceeding initiated by the assessing officer is barred by limitation under the Tamil Nadu Value Added Tax Act, 2006.

Comprehensive Details:

Issue 1: Limitation under TNVAT Act
The petitioner challenged the impugned proceeding dated 16.04.2021, contending that it is barred by limitation. The petitioner argued that as per Section 22(2) of the TNVAT Act, the assessee should have been deemed to be assessed on 31.10.2012 for the assessment year 2011-12. The show cause notice dated 14.09.2015 alleged suppression of sales transactions, leading to a subsequent assessment order dated 25.01.2016. The petitioner claimed that any revision under Section 27 of the TNVAT Act for the assessment year 2011-12 should have been made within 5 years from the date of assessment, i.e., on or before 24.01.2021. The petitioner argued that the reassessment notice issued on 01.03.2021 was beyond the prescribed limitation period.

Issue 2: Interpretation of Deeming Provision
The respondent argued that the limitation period of 6 years should be reckoned from the order dated 25.01.2016, citing an amendment under Act 23 of 2012. However, the Court found that the deeming provision in Section 22 of the TNVAT Act necessitated the petitioner to be deemed assessed on 31.10.2012. Therefore, any assessment or reassessment under Section 27 of the Act should be made within 6 years from the original or deemed assessment date.

Issue 3: Waiver and Jurisdiction
The respondent contended that the petitioner's objection to limitation was waived by previously stating a different limitation date. The Court rejected this argument, emphasizing that consent, waiver, or acquiescence cannot confer jurisdiction beyond statutory limitations. Citing various judgments, the Court reiterated that limitation relates to jurisdiction and cannot be extended by consent or waiver.

In conclusion, the Court held that the impugned proceeding was barred by limitation as per the provisions of the TNVAT Act. The reassessment notice issued beyond the prescribed period was deemed a nullity, and the writ petition challenging the proceeding was allowed.