2022 (10) TMI 6 - HC - VAT and Sales Tax

Reassessment of tax - liability towards tax, interest and penalty - business of manufacturing and selling pan masala - Section 9 (2) of the Central Sales Tax Act, 1956 read with Section 22 (1) of the Chhattisgarh Value Added Tax, 2005. Case of petitioner is that without there being an order of assessment, the respondent authority erred in passing an order of reassessment under Section 22 (1) of the Act of 2005. HELD THAT - The provisions of Section 22 of the Act of 2005 would show that period prescribe for exercising jurisdiction by the Commissioner is to start from the date of order of assessment or from the date of judgment or order of Court or Tribunal. The language used in Section 22 of the Act of 2005 is plain and unambiguous that the Commissioner can exercise jurisdiction under Section 21 (1) only when there is an order of assessment and therefore, the statute provides different period of limitation. The Court has further held that in order to invoke Section 22 (1) of the Act of 2005, there must be an order of assessment by the Assessing Officer in contradistinction to Section 22 (1) of the Act of 2005, which is a deemed assessment. After recording that held, thus the jurisdictional fact and condition precedent for invoking provisions of Section 22 (1) of the Act of 2005 i.e. the order of assessment, was not in existence on the date of issuing notice for reassessment under Section 22 (1) of the Act of 2005. Therefore, the Assessing Officer was jurisdiction-less to initiate reassessment proceedings under Section 22 (1) of the Act of 2005 and the order of reassessment ultimately passed is without jurisdiction and without authority of law and de hors the provisions contained in Section 22 (1) of the Act of 2005, as such, it deserves to be quashed. It is clear that there was no order of assessment, which is a condition precedent to invoke jurisdiction under Section 22 (1) of the Act of 2005 in the case of present petitioner also. In absence of there being any order of assessment, respondent No.4 Commercial Tax Officer, Rajnandgaon was not having any jurisdiction to pass the orders of reassessment under Section 22 (1) of the Act of 2005 and therefore, the same are liable to be quashed - petition allowed.

Summary

Issues Involved:
1. Validity of reassessment orders under Section 22 (1) of the Chhattisgarh Value Added Tax, 2005.
2. Maintainability of writ petitions in the presence of an alternative remedy under Section 48 of the Act of 2005.
3. Jurisdiction of the Commissioner to reassess tax without an initial assessment order.

Detailed Analysis:

1. Validity of Reassessment Orders:
The primary issue revolves around the reassessment orders passed for the assessment years 2012-13, 2013-14, and 2014-15. The petitioner challenged the reassessment orders dated 30.8.2017 and 28.8.2017, claiming they were issued without a preceding assessment order, which is a prerequisite under Section 22 (1) of the Chhattisgarh Value Added Tax, 2005 (the Act of 2005). The court emphasized that the language of Section 22 (1) is plain and unambiguous, requiring an initial assessment order before any reassessment can be conducted. The court relied on previous judgments, including WP (T) No.77/2017, which interpreted the word "order" to mean a formal expression of a decision, not merely an acknowledgment of return submission. Consequently, the absence of an initial assessment order rendered the reassessment orders void and without jurisdiction.

2. Maintainability of Writ Petitions:
The respondents argued that the writ petitions were not maintainable due to the availability of an alternative remedy under Section 48 of the Act of 2005. However, the court referred to the Supreme Court's decision in Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai, which outlined exceptions where a writ petition is maintainable despite an alternative remedy. These exceptions include violations of fundamental rights, breaches of natural justice, and actions taken without jurisdiction. Given that the reassessment orders were issued without jurisdiction (no initial assessment order), the court held that the writ petitions were maintainable.

3. Jurisdiction of the Commissioner:
The court scrutinized the jurisdictional authority of the Commissioner to reassess tax under Section 22 (1) of the Act of 2005. The statute stipulates that reassessment can only occur if an initial assessment order exists. The court found that the reassessment proceedings initiated by the respondent authorities were without jurisdiction, as no initial assessment orders were present. The court cited the decision in M/s Tata Teleservices Limited vs. State of CG & ors, which underscored that the jurisdictional fact and condition precedent for invoking reassessment under Section 22 (1) is the existence of an initial assessment order. The absence of such an order rendered the reassessment proceedings and subsequent orders void.

Conclusion:
The court concluded that the reassessment orders issued by the respondent authorities were without jurisdiction due to the absence of initial assessment orders. Consequently, the reassessment orders dated 30.8.2017 and 28.8.2017 were quashed. The writ petitions were allowed, and the impugned orders were declared void.