2023 (10) TMI 1078 - HC - VAT and Sales Tax

Best Judgement assessment - non-service of SCN - non-communication of the assessment orders to the Petitioner with the prescribed period. The edifice of the case set out by the Petitioner in the three writ petition is that the Respondent No. 4 could not have exercised the power under Section 37 of the Act of 2003 without issuance of notice as mandated under Section 37(1) of the Act of 2003. HELD THAT - When a notice is issued under Section 36 in Form-20, the dealer or the assessee is completely at dark as to why the prescribed authority have initiated audit assessment proceedings. Under such circumstances, if any adverse steps are taken in terms with Sub-Section (5) of Section 36, the principles of natural justice has to be followed. The failure to adhere to the same by giving a reasonable opportunity of being heard at a time of exercising power under Section 36(5) which are adversarial to the interest of the dealer/assessee violates the principles of natural justice. This Court further finds it very pertinent that Sub-Section (5) of Section 36 only empowers the Prescribed Authority to either confirm the self-assessment under Section 35 or set aside the self-assessment made under Section 35 and assess the tax amount from the dealer or assess the amount of tax due from the dealer if no assessment has been made under Section 35. Therefore, as per Section 36(5), what can be assessed by the Prescribed Authority other than confirming the self-assessment is only the amount of tax due and nothing more. This Court had decided that the impugned assessment orders dated 21.12.2017, 21.12.2017 and 24.06.2019 are bad in law and stands vitiated for non-compliance of notice. However, this Court further finds it relevant to take note of the second submission made by the learned counsel appearing on behalf of the Petitioner wherein it was mentioned that the assessment orders both dated 21.12.2017 for the Assessment Year 2012-13 and 2013-14 respectively are also bad in law in view of the provisions of Section 39 of the Act of 2003. Whether the non-communication of the assessment orders to the Petitioner with the prescribed period would render the Assessment Orders for the Assessment Year 2012-13 and 2013-14 fatal? - HELD THAT - In the instant case, it would be seen that though the period as stipulated under Section 39 ended on 31.03.2018 and 31.03.2019 for the assessment years 2012-13 and 2013-14, but the notice of demands were issued in the month of July and August, 2019. There is no mention by way of affidavit or even from a perusal of the records as to why there was a delay in issuance of the said notice for more than two long years - Under such circumstances, this Court taking into account the judgment of the Supreme Court more particularly in the case of M. Ramakishtaiah and Company 1994 (2) TMI 260 - SUPREME COURT is further of the opinion that the impugned assessment orders for the Assessment Years 2012-13 and 2013-14 cannot be presumed to have been passed on 21.12.2017 as the same could have been made after the expiry of the period prescribed. For this reason also, the assessment orders for the period 2012-13 and 2013-14 are set aside. All the assessment orders i.e. 21.12.2017, 21.12.2017 and 24.06.2019 along with the demand notices dated 10.08.2019, 02.07.2019 and 01.07.2019 are all set aside and quashed - petition allowed.

Summary

Issues Involved:

1. Issuance of mandatory notice under Section 37(1) of the Assam Value Added Tax Act, 2003.
2. Violation of Section 39 of the Assam Value Added Tax Act, 2003 regarding the period of limitation for assessment.

Summary of Judgment:

Issue 1: Issuance of Mandatory Notice under Section 37(1)

The petitioner argued that the impugned assessment orders were passed without the issuance of the mandatory notice as required under Section 37(1) of the Assam Value Added Tax Act, 2003. The court noted that the assessment orders for the years 2012-13 and 2014-15 involved the enhancement of turnover, which falls under the purview of Section 37. However, no notice under Section 37(1) was issued, rendering the assessments invalid. The court emphasized that the principles of natural justice were violated as the petitioner was not afforded a reasonable opportunity to be heard before adverse inferences were drawn. Consequently, the assessment orders dated 21.12.2017 and 24.06.2019 were set aside and quashed.

Issue 2: Violation of Section 39 Regarding Period of Limitation

The petitioner also contended that the assessment orders for the years 2012-13 and 2013-14 were beyond the period of limitation prescribed under Section 39 of the Act. The court observed that the assessments should have been completed by 31.03.2018 and 31.03.2019, respectively. However, the demand notices were issued in July and August 2019, well beyond the stipulated period. The court referred to the Supreme Court judgments in Assistant Transport Commissioner, Lucknow Vs. Nand Singh and State of Andhra Pradesh Vs. M. Ramakishtaiah and Company, which held that an order must be communicated within a reasonable period to be effective. In the absence of any explanation for the delay, the court presumed that the orders were not made within the prescribed period. Therefore, the assessment orders for the years 2012-13 and 2013-14 were also set aside on this ground.

Conclusion

All the impugned assessment orders dated 21.12.2017, 21.12.2017, and 24.06.2019, along with the demand notices dated 10.08.2019, 02.07.2019, and 01.07.2019, were set aside and quashed. The writ petitions were allowed.