2016 (10) TMI 898 - HC - VAT and Sales Tax

Validity of assessment order - Section 26 of the BVAT Act, 2005 - no notice served upon the petitioner - Held that - A registered notice sent on the proper address carries presumption of delivery in terms of Section 27 of the General Clauses Act although it gets returned. Period of limitation - the order is beyond the period prescribed for completing the assessment - Held that - The order of assessment itself stipulates that none has put in appearance on behalf of the petitioner even though notice under registered post was sent. A registered notice sent on the proper address carries presumption of delivery in terms of Section 27 of the General Clauses Act. Still further, merely because demand notice was sent after three years will not raise a presumption of ante-dating the order as it is categorically mentioned in the counter affidavit that the demand notice was prepared on the same date, but due to clerical mistake it could not be sent. Therefore, mere fact that the demand notice was sent in the year 2016 will not be enough to raise presumption that the order has been ante-dated. The case of State of Andhra Pradesh Versus Khetmal Parekh & M. Ramakishtaiah and Co. 1994 (2) TMI 260 - SUPREME COURT OF INDIA referred by petitioner do not apply to the present case as in the case the Department could not offer any explanation as to why there was delay in sending demand notice, but a perusal of the demand notice in the present case shows that it bears the same date as the date of order, but it has been delivered to the appellant only thereafter. Therefore, the explanation of the Department in the counter affidavit cannot be said to be unreliable. No reason exist to doubt that the order of re-assessment was passed on the same date which bears the date, i.e. 20th June, 2013 - it is open to petitioner to avail statutory remedy under the Act in accordance with law - petition dismissed.

Summary

Issues:
Challenge to order of assessment under Bihar Value Added Tax Act, 2005 for assessment year 2007-08 without notice and within the prescribed period.

Detailed Analysis:

1. Notice Issue:
The petitioner challenges the assessment order on the grounds of lack of notice. The counter affidavit states that a notice was sent via Registered Post to the petitioner's address, which is deemed served if not received back. The petitioner's claim of no notice is refuted by the record showing the registered letter sent on 3rd June 2013 following an interim order on 1st June 2013. The court finds no merit in the argument that the assessment order was passed without notice.

2. Limitation Period Issue:
The assessment was conducted based on an audit report under Section 26 of the Act read with Rule 22 of Bihar Value Added Tax Rules, 2005. Section 31(1) of the Act specifies a limitation period of four years from the expiry of the year of the original assessment or reassessment. The assessment order dated June 20, 2013, falls within this limitation period as the due date for the assessment year 2007-08 was December 31, 2009, making the assessment order timely.

3. Validity of Assessment Order:
The petitioner argued that the assessment order dated June 20, 2013, was ante-dated as the demand notice was served in May 2016. Citing legal precedents, the court rejected this argument, noting that a registered notice sent to the correct address carries a presumption of delivery. The court found no evidence to support the claim of ante-dating the order, as the demand notice delay was attributed to a clerical error. The court upheld the validity of the assessment order.

4. Conclusion:
The court dismissed the petition, stating that while there was no basis to challenge the assessment order, the petitioner could avail statutory remedies under the Act. The judgment clarified the validity of the assessment order, emphasizing the importance of timely notice and adherence to statutory limitations in tax assessments under the Bihar Value Added Tax Act, 2005.

This detailed analysis of the legal judgment addresses the issues raised regarding the assessment order under the Bihar Value Added Tax Act, 2005, providing a comprehensive understanding of the court's decision and reasoning.