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TMI Blog2014 (11) TMI 838X X X X Extracts X X X X X X X X Extracts X X X X ..... ns being identical, they have been clubbed, heard together and disposed of by this common order. 2. The petitioners are manufacturers of edible oil and in the course of business, imports crude palm oil and after being processed the refined palm oil is sold locally, inter-state, export and also by means of consignment/branch transfer to other States. The petitioners also effected sales of the crude palm oil while in the course of import i.e., high sea sales. It is submitted that the export sale and sale in the course of import is exempted under Section 5(1) & 5(2) of the CST Act and under Section 18(1) of the TNVAT Act, which treats it as zero rated sale. Since facts are almost identical, it would suffice to refer to the facts in W.P.(MD) No.5355 of 2014 and the writ petitions filed by the said petitioners. 3. The petitioner filed monthly returns under CST Act for the assessment years 2011-2012, 2012-2013 and 2013-2014 reporting their total and taxable turnover and claimed concessional rate of tax on interstate sales against filing of C-Form declaration. The petitioner also claimed exemption under Section 5(1) and (2) of the CST Act as well as under Section 6(A) of the CST A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt taken from www.icegate.com. Once again, the petitioner challenged the said notice in W.P.(MD) No.4685 of 2014, which was admitted and an order of interim stay was granted. Thereafter, two notices, dated 03.03.2014, were issued, proposing to make provisional assessment for the quarter ending 30.06.2013 and notice dated 30.09.2013 for the assessment year 2013-2014. The said notice came to be issued for the alleged contravention of Section 12(7) of CST (Registration & Turnover) Rules, 1957 (hereinafter, referred to as 'the Rules'). The petitioner challenged the notice dated 03.03.2014, by filing W.P.(MD) No.5355 of 2014 stating that in view of Rule 10(2) of CST Rules, the provisions of Rule 12(7) of the Rules will not be applicable to the State of Tamil Nadu. Hence, the impugned proceedings of the respondent proposing to make provisional assessment for the quarter ending 30.06.2013 and 30.09.2013 for non- production of declaration in Form-C and F is not unsustainable in law. Further, it is stated that the earlier notice, dated 27.02.2014, has been challenged in W.P.(MD) No.4685 of 2014 and an order of interim stay has been granted by this Court on 18.03.2014 and therefore t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that once the assessment year is over, the power under Section 25 cannot be invoked as it should be within the 1st April to 31st October and the impugned proceedings termed as pre-assessment notices have been issued after the assessment year is over by which the petitioners have been deemed to have been assessed for the relevant year and this aspect was taken note of by this Court while granting interim stay elaborately setting out the contention despite that the respondent repeatedly issuing notices and harassing the dealers. Therefore, it is submitted that such notice cannot be treated to be a notice under Section 25 and the same cannot be done, this power is only available during the current year period. Further, it is submitted that an order under Section 6(A)(2) of the CST Act can be passed at the time of or at any time before the assessment and the date on which the notice was issued is admittedly after the year is over by then the petitioners are deemed to have been assessed and there is no power to issue the pre-assessment notices. 10. Further, it is submitted that on a bare perusal of the impugned notices would show that the petitioners submitted Form-F declarations, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, there are conditions and only upon fulfilling such conditions, the dealer is entitled to be deemed to be assessed. Further, it is submitted that the notice, dated 26.07.2013, is before the end of the year and issued under Section 22(4) of TNVAT Act. Further, the learned counsel referred to Section 25 of the Act relating to the provisional assessment and also the notice issued by the respondent dated 04.03.2014. It is further submitted that the dealer is bound to submit declaration forms within the time and the State Investigation Wing verified the premises of the petitioners at Puducherry and shocked to know that it was a very small premises of an area of 100 sq.ft., and therefore the Department should be allowed to pursue the matter further and the dealers should be directed to submit their explanation to the impugned proceedings, which is only a notice. 14. Further, it is submitted that though the impugned notices have been stated as pre-assessment notices, the nomenclature will not vitiate the entire proceedings and the dealer is bound to co-operate with the department and even now they are not co-operating. Further, it is submitted that the respondent called for the detail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can invoke best judgment assessment under Section 22(4) of TNVAT Act. Further, it is submitted that both the assessment under Section 22(2) or 22(4) is operative only after completion of the assessment year to which it relates. 17. Further, it is submitted that the petitioners have not complied with the requirements under Section 22(2) of the Act and failed to file documents/declarations as required under Rule 12(7) of CST Act and Rule 5 of CST Act and therefore the petitioners are not eligible to finalize their assessments under deemed self-assessment. It is further submitted that the petitioners have not filed the returns along with the documents prescribed and thus they have filed incorrect and incomplete returns and hence they are not eligible for deemed self-assessment. Therefore, it is submitted that the respondent rightly invoked the power under Section 25 of TNVAT Act read with Section 9(2) of CST Act and Rule 5 of CST Rules and requested the documents prescribed, which is only in accordance with law. 18. Further, the learned Additional Government Pleader relied upon the decision of the Honourable Division Bench of this Court in the case of W.A.No.229 of 2007 in Sr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner challenged the same in W.P.(MD) No.13349 of 2013 and an order of interim stay has been granted. 22. The pre-assessment notice issued under CST Act for the assessment year 2012-2013 has been challenged on the ground that the respondent cannot issue any notice for the said assessment year. However, once again another notice came to be issued, which has been challenged in W.P.(MD) No.19732 of 2013. When the writ petition was pending, a representation was filed before the Joint Commissioner (CT) Tirunelveli Division to direct the respondent to take the final assessment for the pending assessment years both under TNVAT Act and CST Act. The Joint Commissioner by proceedings, dated 20.12.2013, directed the respondent to complete the pending assessing and report compliance by 31.12.2013. A counter affidavit was filed by the respondent stating that the claim of exemption made by the petitioner in the monthly return was found to be admitted and liable to be accepted. Recording the same, the writ petition was disposed of on 06.02.2014. The petitioner would state that without passing final orders, the respondent issued the another set of notices calling upon the petitioners to fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble opportunity of providing the correctness or completeness of the return submitted by him. 26. Section 27 deals with assessment of escaped turnover and wrong availment of input tax credit and under sub-section (1) of Section 27 the assessing authority may, subject to the provisions of sub-section (3), at any time within a period of six years from the date of assessment, determine to the best of its judgment the turnover which has escaped assessment and assess the tax payable on such turnover after making such enquiry as it may consider necessary, in cases, the dealer has been assessed at a rate lower than the rate at which it is assessable. 27. Rule 7 of TNVAT Rules prescribes filing of returns. Rule 8 deals with procedure for assessment, sub-rule (9) of Rule 8 states that where a registered dealer is deemed to have been assessed under the Act, the assessing authority shall not be required to issue any assessment order or intimation to the dealer. This provision has been inserted by a notification, dated 19.06.2012, with effect from that date. Sub-rule (1) of Rule 8 states that the deemed date of service of the deemed assessment order shall fall on the 31st day of October of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the respondent proposed to make an original assessment for CST 2012-2013 contrary to the amendment to Section 22(2) of TNVAT Act, the same was challenged in W.P.(MD) No.13349 of 2013 and stay has been granted. Therefore, calling upon the petitioner to produce details of import more specifically in relation to the assessment year 2012-2013 amounts to contempt of court. The further contention has been raised by stating that the impugned notices have been termed as 'pre-assessment notices' and the same cannot be done and the entire proceedings have to be quashed. 32. It is to be noted that the learned Additional Government Pleader appearing for the respondent submitted that the assessing authority shall accept and pass orders once returns are filed and in order to overcome any administrative delay in the issue of orders, the deeming provision was brought out in the said VAT Act. At the same time, the dealers need to prove their claim of benefits of reduced rate or exemption from tax, and the entire burden falls on the assesses to file those documents and declaration forms within the prescribed period (three months) from the date of sale as per Rule 12(7) or if the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 'accompanied with the prescribed documents and proof of payment of tax', the situation may be disastrous and it would amount to extending the relief not intended by the statute. 35. In the notice, dated 26.07.2013, for the assessment year CST 2012-2013, on consideration of the total taxable turnover reported by the dealer claiming exemption in their monthly return in Form-I, the assessing authority has taken up the return for verification and found that the dealer has effected interstate transaction and that documents have been filed only in respect of the claim for concessional rate and documents in respect of the claim for exemption, have not been substantiated by any supportive documents relevant as required under Section 5(1) of CST Act. Therefore, the proposal has been made to assess the total taxable turnover as shown in the impugned notice, dated 26.07.2013. 36. In the notice, dated 26.07.2013, for the assessment year 2011-2012, the assessing officer pointed out that the dealer has not filed any documents in respect of the claim of exemption as per the returns filed and therefore proposed to reassess the turnover. Similar is the proposal in the notice for the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sold at the regional sales offices, the Court cannot stop him from making such enquiries. A similar complaint as made in these cases was also submitted before the Honourable Supreme Court complaining that assessments are going an endlessly. In the instant case, the complaint is notice after notice were issued by the assessing officer considering such a complaint. In that context, the Honourable Supreme Court observed that the assessing authority will have to decide all questions of fact and law, he has to make whatever enquiries he thinks necessary for determination of the value of excisable goods and the High Court in exercise of its jurisdiction cannot give guidance to the assessing authority about the manner and mode in which the assessment should be made. 40. Consistently, this Court has been taking a view that a writ petition challenging a notice is not maintainable unless it is shown that it is palpably without jurisdiction, arbitrary or unreasonable and to arrive at such a finding there should not be any disputed question of fact or long drawn reasoning and in such cases, the party should be directed to respond such a notice. In the instant case, the notices are pursuant t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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