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TMI Blog2004 (5) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... e one will have to refer to Chapter V of the Rules wherein rule 21 refers to the return period. 3.. The assessment procedure is prescribed in section 23 of the Act. Section 41 of the Act refers to production and inspection of accounts and documents and search of premises. 4.. In the instant case, the petitioner is a registered dealer carrying on business and was required to file a quarterly return, as per the provisions contained in the Act for the quarter April 1, 2002 to June 30, 2002 within the period of 45 days, i.e. to say on or before August 14, 2002. However, the officers of the sales tax department visited the premises of several dealers including that of the petitioner and on considering the report submitted by the reporting team the assessing officer issued a notice dated July 18, 2002, the copy of which is produced at page 41, requiring the dealer to attend his office and to show cause as to why the dealer should not be assessed as to the best of judgment and why penalty should not be imposed under section 56 of the Act. 5.. In response to the said notice, the dealer appeared and pointed out the fact that the dealer cannot be assessed on a single day's transaction. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnish returns in respect of any period by the prescribed date, the Commissioner shall, after giving the dealer a reasonable opportunity of being heard, assess to the best of his judgment the amount of tax, if any, due from him." 7.. According to the scheme, it appears that sub-section (1) refers to a period. Sub-section (1) specifically points out that the dealer shall be assessed separately for each year during which he is liable to pay the tax. However, the period of a return may not be of twelve months, but the period may be either monthly or quarterly. First proviso to sub-section (1) of section 23, empowers to assess the tax due for "any period" or "any other period of such year". The words "any period" mean the period which is already specified, i.e., quarterly or monthly. Latter part of the proviso refers to "or any other period of such year". The words "any other period" is for a period other than the one which is not specified. When a person who is a registered dealer and is required to file the returns either monthly or quarterly, he would ordinarily be required to file a return for such a period before the prescribed date. If a registered dealer fails to file the ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the application of the dealer that he shall furnish returns quarterly in accordance with the provisions of these rules from the commencement of such quarter as may be specified therein." 9.. Reading the rule, it is very clear that returns are required to be furnished within 30 days from the expiry of each quarter. However, the first proviso permits a registered dealer whose admitted liability exceeds one thousand rupees to file a return within a period of 45 days from the expiry of the quarter. The period can be reduced in view of further proviso. Sub-rule (2) provides for a monthly return. 10.. So far as proviso to sub-section (1) of section 23 of the Act is concerned, it empowers the Commissioner to assess the tax due from the dealer separately for a specified period of a year or any other period of such year. The further proviso to section 23 indicates that for the reasons to be recorded in writing the dealer can be assessed and taxed. However, it is subject to such conditions as may be prescribed and for the reasons to be recorded in writing. So far as the conditions are concerned, they having not been prescribed, at least reasons are required to be recorded in writing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of tax, if any, due from the dealer after giving a reasonable opportunity of being heard. 13.. On behalf of the Revenue, it was submitted that in view of the verification carried out by a team of officers, the report was laid before the assessing officer, who recorded his reasons to proceed ahead in the matter and issued a notice. Not only that after showing reasons and giving an opportunity of hearing, the assessing officer made an order of assessment and, therefore, in ordinary course it is for the petitioner to approach the appellate officer to make his grievances. On the other hand, it was submitted by the petitioner that procedure adopted for assessment in this case is unknown. Under the Act, mere visit or even inspection of books of account would not authorise the assessing officer to assess the dealer. It was also submitted that it was not his own conclusion. We are not required to examine this aspect, as we are of the opinion that looking to the Scheme of the Act, it is very clear that the assessing officer is required to call upon the dealer to file a return and thereafter to assess as per the procedure contemplated in section 23 of the Act. 14.. It would be also nece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od indicated therein. Sub-section (2) of section 23 refers to the satisfaction qua returns filed by the assessee and to complete the assessment on the basis of such returns. Sub-section (3) refers to filing of return but non-satisfaction of the Commissioner. The procedure is prescribed in sub-section (3) and failure of compliance to any terms of the notice issued under sub-section (3) indicates the procedure to be followed by the Commissioner in sub-section (4) of section 23. However, if the return is not filed by the assessee before the prescribed date, then the procedure to be followed is indicated in sub-section (5) of section 23. It is also required to be noted that under sub-section (2) of section 21, dealer either registered or not can be called upon to furnish the return. Reading the Scheme of the Act, it is very clear that the dealer is required to submit a return. If he does not submit, then he can be called upon to submit a return and thereafter procedure is to followed, namely, best judgment assessment. The best judgment assessment is contemplated under sub-section (4) of section 23 and sub-section (5) of section 23. The period is prescribed in sub-section (1) of section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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