2021 (9) TMI 261 - HC - VAT and Sales Tax

Violation of the circular issued by the Special Commissioner and Commissioner of Commercial Taxes vide Acts Cell-VI/13234/2001 dated 20-04-2001 - seeking direction to respondent to pass an assessment order afresh - opportunity of personal hearing required - HELD THAT - It is a definite case of the petitioner that a return has been filed for the concerned assessment year for which acknowledgement from the respondent also had been filed before this Court - In this context, when notice was issued under Section 22(4) to proceed further, admittedly, the petitioner had not responded to the said notice, therefore, the respondent had proceeded further and to pass assessment order dated 10.07.2015. In the said order, the provision has been wrongly quoted as Section 25(1) instead of Section 22(4) even that has also been rectified, ofcourse pursuant to the application submitted in this regard by the petitioner dated 19.01.2016, by the respondent through the order dated 10.03.2016 passed under Section 84 of the Act - Therefore, if at all the petitioner still has got any grievance over the orders passed by the respondent both on 10.07.2015 and 10.03.2016, against both orders, the petitioner can either file an appeal under Section 51 of the Act or revision under Section 54 of the Act respectively, if he is advised to do so. Petition dismissed.

Summary

Issues:
1. Incorrect assessment order passed by the respondent without considering the return filed by the petitioner.
2. Rectification order passed under a different provision without acknowledging the return submitted by the petitioner.
3. Discrepancy between petitioner's claim of filing an annual return and respondent's assertion of a purchase turnover exceeding the threshold.
4. Failure of the petitioner to respond to the notice issued under Section 22(4) of the Act.
5. Rectification of the error in the assessment order by the respondent through a subsequent order under Section 84 of the Act.
6. Availability of legal recourse for the petitioner to challenge the assessment orders.

Analysis:

1. The petitioner contended that the respondent wrongly assessed the tax liability without considering the return filed by the petitioner, leading to the imposition of a penalty. The petitioner argued that the assessment order under Section 25(1) was incorrect as the return had been submitted and acknowledged by the assessing authority.

2. The petitioner further challenged the rectification order passed under Section 84 of the Act, stating that the respondent failed to mention the submission of the return in the revised order. The petitioner emphasized that both the original assessment order and the rectification order were flawed as they did not acknowledge the filing of the return.

3. The dispute arose from the petitioner's claim of filing an annual return based on a turnover below ?10,00,000, while the respondent discovered purchases exceeding this threshold. The respondent argued that the omission of these transactions constituted a purchase omission, justifying the assessment under Section 22(4) of the Act.

4. Despite the notice issued under Section 22(4) to address the discrepancy, the petitioner did not respond, leading to the assessment order dated 10.07.2015. The respondent defended the assessment, stating that the error in quoting Section 25(1) instead of Section 22(4) did not invalidate the assessment.

5. The respondent rectified the error in the assessment order through a subsequent order under Section 84 of the Act, changing the provision to Section 22(4). The respondent argued that this rectification addressed any procedural errors and rendered the assessment orders valid and acceptable.

6. The court observed that the petitioner could seek legal recourse by filing an appeal under Section 51 or a revision under Section 54 of the Act to challenge the assessment orders. The court dismissed the writ petition, stating that the petitioner's claims did not warrant successful challenge before the court, and advised the petitioner on available legal avenues for redressal.