2013 (10) TMI 439 - HC - VAT and Sales Tax

Limitation period - Revised assessment proceedings - TNGST Act - Held that - By reading Section 16(1)(a) it is clear that the limitation period commences from the date of final assessment order. The said provision came into effect prospectively and not retrospectively. There is nothing in the amended provision Section 16(1)(a) that the same was intended to operate retrospectively. Therefore the respondent cannot resort to the amended provision Section 16(1)(a) to sustain the impugned revised proceedings of assessment - since the assessment order was passed on 11.12.2000, much prior to the amended provision came into effect i.e., 1.7.2002, the limitation of five years cannot be calculated from the date of the final order of assessment based on the amended provision Section 16(1)(a). The assessment year in question is 1998-1999. Hence, the five year limitation ends by 31.3.2004 and the revised assessment proceedings dated 23.8.2004 issued beyond the period of five years is barred by limitation - Hence barred by limitation. Dismissal of writ petition - Alternative remedy - Held that - High Court would not normally exercise its jurisdiction when an alternative remedy is available under the statute and the same can be exercised only when the order is lacking jurisdiction or it is statutorily barred by limitation. The petitioner has established that the revised assessment proceedings issued under Section 16(1)(a) of TNGST Act is statutorily barred by limitation and therefore the writ petition cannot be dismissed on the ground of alternative remedy - Decided in favour of assessee.

Summary

Issues:
Challenging the revised assessment order as barred by limitation under CST Act 1956 and TNGST Act. Jurisdiction to revise assessment beyond five years. Alternative remedy of filing appeal versus invoking writ jurisdiction.

Analysis:
The petitioner, a dealer in Abrasives, challenged a revised assessment order issued by the respondent as barred by limitation under CST Act 1956 and TNGST Act for the year 1998-1999. The pre-revision notice was issued on 5.4.2004, and the revised assessment order was made on 23.8.2004, beyond the five-year limit. The petitioner contended that the respondent had no jurisdiction to revise the assessment beyond the prescribed time. The respondent argued that the petitioner should have approached authorities by filing objections and that the revised assessment was within the time limit.

The main issue was whether the revised assessment proceedings were within the prescribed time limit. Section 16(1)(a) of the TNGST Act allows for the assessment of escaped turnover within five years from the expiry of the relevant year. In this case, the assessment year was 1998-1999, and the five-year period ended on 31.03.2004, making the revised assessment issued on 23.8.2004 clearly barred by limitation.

Regarding the amended provision of Section 16(1)(a) of the TNGST Act, it was argued that the limitation period commences from the date of the final assessment order, which came into effect prospectively from 01.07.2002. Since the assessment order was passed on 11.12.2000, the five-year limitation could not be calculated from the amended provision's effective date, further supporting the argument that the revised assessment was beyond the limitation period.

The High Court noted that when an alternative remedy is available under the statute, it would not normally exercise its jurisdiction unless the order lacks jurisdiction or is statutorily barred by limitation. The Court referred to previous judgments where it was held that applying amended provisions to assessments made prior to the amendment was not permissible, and interference under Article 226 of the Constitution of India was justified when revised assessment orders were clearly barred by limitation.

In conclusion, the High Court held that the revised assessment proceedings were indeed barred by limitation under Section 16(1)(a) of the TNGST Act, quashing the proceedings and allowing the writ petition. The Court did not order costs, and the connected miscellaneous petition was closed.