2024 (5) TMI 1173 - HC - VAT and Sales Tax

Time Limitation - submission of annual returns after the expiry of the prescribed time-limit - Validity of self-assessment u/s 35 of the Assam VAT Act, 2003 - Legality of re-assessment proceedings u/s 40 of the Assam VAT Act, 2003. Timeliness of Submission of Tax Returns and Annual Returns - HELD THAT - The monthly returns for the annual year 2009-2010 was not submitted within the 21st day of the succeeding month, in other words, it was not submitted within the time prescribed under 17 (1) of the said Rules, 2005, which is within next 21 days of the succeeding months. It is evident that the return for the month of April 2009 was submitted on 12.06.2009 which is after the expiry of the prescribed time. Similarly, in respect of other months for the year 2009-2010, the monthly returns were submitted after the expiry of the prescribed time - The revised returns were filed on 13.04.2011 i.e. after expiry of two months prescribed in Rule 17 (5) (a) of the said Rules, 2005 and as such the said revised returns were also not submitted within the prescribed time and therefore, no self-assessment can be deemed to have been completed under Section 35 of the said Act. Pertinent to mention that in the affidavit-in-opposition filed by the assessing authorities, there is no denial to the aforesaid statements made in paragraphs 4 and 5 of the writ petition. It is well settled that averments if not denied would amount to an admission of the facts. The assessing authorities did not deny these facts, which are thus deemed admitted. Validity of self-assessment u/s 35 of the Assam VAT Act, 2003 - Legality of re-assessment proceedings u/s 40 of the Assam VAT Act, 2003 - HELD THAT - The assessment was initiated under Section 40 of the Act without completion of assessment under Sections 34, 35, 36 or 37 of the Act, 2003. Section 40 of the Act, 2003 dealing with turnover escaping assessment provides that for invoking the powers under Section 40 of the Act, a dealer must have been assessed under Section 34, 35, 36 or 37 of the Act, 2003 for any year or part thereof - Since in the facts of the instant case, no self assessment can be deemed under Section 35 of the Act, 2003 re-assessment under Section 40 of the said Act, 2003 could not have been made under the provisions of the said Act. In order to re-assess under Section 40 of the Act, 2003, there has to be firstly an assessment in law. It is only after an assessment is made, the assessing authorities has jurisdiction to exercise powers of reassessment subject off course to the fulfillment of the other two conditions stipulated therein. The existence of assessment is a condition precedent for making a reassessment under Section 40 of the Act, 2003 and if such condition precedent exist, the assessing authorities had no jurisdiction to make the reassessment. As such, without assessment under section 34, 35, 36 or 37 of the Act, 2003, the respondent authorities could not have resorted to the provisions of the reassessment stipulated under Section 40 of the said Act. In the present case, there was no assessment under section 35 of the Act, 2003, made during the prescribed period. Therefore, no assessment can be deemed to have been made in law - the said order of re-assessment having been completed without any assessment made under section 35 of the Act, 2003, the order of reassessment dated 17.03.2018 is absolutely illegal and without jurisdiction - the very initiation of proceedings under section 40 of the Act, 2003 is absolutely illegal, without jurisdiction and not tenable in law. The impugned Order of re-assessment dated 17.03.2018 and the Notice of Demand dated 17.03.2018 are set aside and quashed - Petition allowed.

Summary

Issues Involved:
1. Legality of the re-assessment order dated 17.03.2018.
2. Validity of the notice of demand issued on 17.03.2018.
3. Compliance with Sections 34, 35, 36, 37, 39, and 40 of the Assam Value Added Tax Act, 2003.

Summary:

1. Legality of the Re-assessment Order:
The petitioner challenged the re-assessment order dated 17.03.2018 passed by the Superintendent of Taxes, Naharkatia for the assessment year 2009-2010 u/s 40 of the Assam Value Added Tax Act, 2003. The petitioner contended that the re-assessment was actually an audit assessment u/s 36, which became barred by limitation. The petitioner argued that no assessment was made u/s 34, 35, 36, or 37, and therefore, the re-assessment u/s 40 was erroneous and illegal.

2. Validity of the Notice of Demand:
A notice of demand was issued on 17.03.2018 for payment of Rs. 21,85,79,385.00/-. The petitioner argued that since no valid assessment was completed within the prescribed time, the notice of demand was also invalid.

3. Compliance with Relevant Sections of the Act:
The court examined Sections 29, 35, 39, and 40 of the Assam Value Added Tax Act, 2003, and Rule 17 of the Assam Value Added Tax Rules, 2005. It was found that the petitioner had not submitted the monthly returns for the year 2009-2010 within the prescribed time. The revised returns were also filed after the stipulated period, and thus, no self-assessment could be deemed to have been completed u/s 35. The court noted that the assessing authorities did not deny the late submission of returns, which amounted to an admission of the facts.

Judgment:
The court held that since no assessment was made u/s 34, 35, 36, or 37, the re-assessment u/s 40 was without jurisdiction. The court referenced several judgments to support the view that no assessment can be made after the expiry of the prescribed period. The court concluded that the re-assessment order dated 17.03.2018 and the notice of demand were illegal and without jurisdiction. Consequently, both the re-assessment order and the notice of demand were set aside and quashed. The writ petition was allowed and disposed of.