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TMI Blog2013 (2) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... ld make no difference to the situation because the time for the issuance of the notice under Section 21(3) and consequently for making an assessment under Section 23(3A) had not expired. Before the assessment became time barred, the legislature stepped in by deleting Section 21 by Ordinance 6 of 2011 and by making a corresponding amendment by Section 23(3A). But, the point to note is that when the amendment was brought about by Ordinance 6 of 2011, the time prescribed for the issuance of a notice under Section 21 (3) and for completing an assessment under Section 23(3A) had not come to an end and the assessment had not become time barred. The amended provision does not make any difference to the position. Both under the unamended and under the amended provision, the assessment is not time barred for A.Ys 2005-06 and 2006-07. Thus as the period of limitation for making an assessment in respect of the period ending on 31 March 2008 had yet not expired, the present is not a case where by a subsequent amendment, limitation has been enlarged even though the limitation prescribed under the earlier legislative provision has expired - no merit in the Petition. - WRIT PETITION NO. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served on the dealer within a period of six years from the end of the year containing the said period. 5. Section 23 provides for assessment. Under Sub-section (1) of Section 23 a best judgment assessment is provided for where a registered dealer fails to file a return in respect of any period by the prescribed date. Sub-section (2) of Section 23 refers to a situation where a return is filed by a registered dealer. In that event, the Commissioner is empowered to serve a notice on the dealer in order to require the presence of the dealer or the production of further documents. Section 23(2) provides as follows: 2) Where the return in respect of any period is filed by a registered dealer by the prescribed date and if the Commissioner considers it necessary or expedient to ensure that return is correct and complete, and he thinks it necessary to require the presence of the dealer or the production of further documents, he shall serve on such dealer, a notice requiring him on a date and at a place specified therein, either to attend and produce or cause to be produced all documents on which such dealer relies in support of his return, or to produce such documents or evidence as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en inserted with effect from 1 April 2005. 9. The submission which has been urged on behalf of the Petitioner is that: (i) Under Section 23 (2) the second proviso stipulates that no order of assessment under the sub-section may be made after the expiry of three years from the end of the year containing the period to which the return relates; (ii) For AY 2005-6, the assessment became barred on 31 March 2009 while for AY 2006-7, the assessment became barred on 31 March 2010; (iii) Sub-section (3A) of Section 23 which was brought in with effect from 15 August 2007 would have no application unless a notice for assessment under sub-section (3) of Section 21 had been served on a dealer. No notice was served on the dealer until the assessment became time barred on 31 March 2009 and 31 March 2010 respectively; (iv) The amended provision of Section 23 (3A) which was brought in by Ordinance 6 of 2011 enacted a non-obstante provision. The amended provision however would not revive an assessment which had become time barred prior to the insertion of the provision. In the present case, even before the introduction of the amended provision of Section 23(3A) by Ordinance 6 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rent periods of limitation; and (vii) The judgment of the Division Bench in Siemens India (supra) is distinguishable since the amendment in that case was not retrospective. Moreover, the ratio of the judgment is contained in paragraph 25. The rival submissions now fall for consideration. 11. Under sub-section (1) of Section 21 of the Maharashtra Value Added Tax Act, 2005 a period of two years was prescribed within which a notice calling a dealer for assessment had to be issued where a return was filed by a dealer by the prescribed date. This period in a case where a dealer had not filed a return was prescribed as three years in sub-section (2). Sub-section (3) which contained a non-obstante clause overrode sub-sections (1) and (2) and provided an extended period of six years for the issuance of a notice of assessment in respect of any period ending on or before 31 March 2008. In respect of a period commencing on and after 1 April 2008, the period which is prescribed by sub-sections (1) and (2) alone would apply. Section 23 deals with assessment. Under sub-section (2) of Section 23, where a return is filed by a registered dealer within the prescribed date the Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the period ending on or before 31 March 2008, Section 21(3) initially provided an extended period of six years for the issuance of a notice for assessment and where such a notice was issued, Section 23(3A) allowed a period of seven years to complete the assessment. Consequently, for AY 2005-6 a notice under Section 21(3) could be issued until 31 March 2012 and the assessment under Section 23(3A) could then be made until 31 March 2013. For AY 2006-7 a notice under Section 21(3) could have been issued until 31 March 2013 and an assessment under Section 23 (3A) could be made by 31 March 2014. The fact that a notice had not been issued would make no difference to the situation because the time for the issuance of the notice under Section 21(3) and consequently for making an assessment under Section 23(3A) had not expired. Before the assessment became time barred, the legislature stepped in by deleting Section 21 by Ordinance 6 of 2011 and by making a corresponding amendment by Section 23(3A). But, the point to note is that when the amendment was brought about by Ordinance 6 of 2011, the time prescribed for the issuance of a notice under Section 21 (3) and for completing an asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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