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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 ..... of 2014 and W.P.(MD) Nos.13343, 13344, 13345, 13346, 13347, 13348, 13349, 14400, 14401, 14398 & 14399 of 2013 and M.P.(M - - - Dated:- 19-9-2014 - T. S. Sivagnanam,JJ. For the Petitioners : Mr. R. L. Ramani, Senior Counsel (in all W.Ps) for Mr. S. Raja Jeya Chandra Paul For the Respondent : Mr. R. Karthikeyan, A.G.P. (in all W.Ps) ORDER In all these writ petitions the challenge is to pre-assessment notices/notices issued by the respondent under the provisions of the Tamil Nadu Value Added Tax Act, 2006 (hereinafter, referred to as 'the TNVAT Act' and the Central Sales Tax Act, 1956 (hereinafter, referred to as 'the CST Act'). The petitioners are registered dealers under the provisions of the said Acts and though there are more than one dealer in these batch of cases, the legal issue involved in all these writ petitions 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 tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents in respect of their claim. Thereafter, another notice, dated 27.11.2013 was issued under CST Act for the assessment year 2012-2013 proposing to treat the high sea sales effected by the petitioner during May 2012 as a local sale under TNVAT Act. The said notice was challenged by the petitioner in W.P.(MD) No.19732 of 2013. The said writ petition was disposed of by order, dated 06.02.2014 by recording the submissions made by the respondent in their counter affidavit with a further direction to the authority to pass necessary final orders as per the statements made in the counter affidavit. 5. Further, it is submitted that subsequently the respondent issued notice, dated 27.02.2014, calling upon the petitioner to furnish details of import made during the assessment years 2011-2012, 2012-2013 and 2013-2014 in the form of a computer generated statement 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings under section 27 of the TNVAT Act. 8. In another set of writ petitions namely W.P.(MD) Nos.13343 of 2013 etc., batch, the challenge is to the notice, dated 29.07.2013, under CST Act. By the said notice, the respondent proposed to assess the turnover in respect of the interstate transaction and directed the petitioner to produce documents in support of their claim for consessional rate/exemption, as per the returns filed by the petitioner and to submit their objections. In these writ petitions also the very same contention stating that such notice could not be issued in the light of the amended Section 22(2) of the TNVAT Act has been raised. 9. Mr.R.L.Ramani, learned senior counsel, for the petitioners, after elaborately referring to the provisions of the TNVAT Act namely Sections 20, 21, 22, 25 as well as the Rules 8(9) and 8(10) of the Rules, submitted 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Limited, reported in 1990 (79) STC 421, for the proposition that it is not open to the Revenue to pass a provisional order of assessment after the end of the assessment year. 12. Further, the learned senior counsel placed reliance on the decision of the Honourable Supreme Court in the case of Ashok Leyland Ltd. v. State of Tamil Nadu, reported in 2004 (134) STC 473, with regard to the scope of Section 6(A) of CST Act and submitted that all the requisite particulars have been furnished and once a determination is made that such statements are correct, the curtain is drawn keeping in view of the expression 'there upon' used in Section 6(A)(2) of CST Act. 13. Mr.Raja Karthikeyan, learned Additional Government Pleader, for the respondent submitted that the deemed assessment is not an automatic and in this regard if Section 22(2) of TNVAT Act is carefully scrutinized, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions available for finalization of original assessment order namely the Assessing Officer may decide the deemed self- assessment order as per Section 22(2) of TNVAT Act or the Assessing Officer may reject the returns filed by the dealers and thereby pass best judgment assessment as per Section 22(4) of TNVAT Act from the assessment years 2012- 2013 onwards. It is further submitted that the deemed self-assessment order under Section 22(2) of TNVAT Act is not automatic one, but subject to the conditions that (i) the dealer shall file returns within time as prescribed and in prescribed manner, (ii) the dealer shall pay tax as per return, (iii) the dealer shall file necessary prescribed documents. Unless and until all the requirements are complied with by the dealer, they are not eligible to be assessed under the deemed self-assessment and in such circumstances, the assessing officer 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on interstate transactions against Form-C declaration and claimed exemption under Section 5(2) of CST Act on the sales in the course of import and on their branch transfer/consignment sale under Section 6(A) of CST Act. It is their further case that as per Section 22(2) of TNVAT Act, the assessing authority shall accept the returns submitted by the dealer and pass an order of assessment (self-assessment). However, after the Amendment Act, 23 of 2012, the dealer is deemed to have been assessed as for the year as per the returns on the 31st day of October of the succeeding year. Therefore, the petitioners would contend that for the assessment years 2011-2012 and 2012-2013, the petitioners original assessment has been deemed to have been completed on 31.10.2012 and 31.10.2013 stating that the impugned notices have been issued in violation of the mandatory provisions of the Amended Act. The 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 yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proviso states that in respect of such returns submitted for the years 2006- 2007, 2007-2008, 2008-2009, 2009-2010 and 2010-2011, on which assessment orders are not passed shall be deemed to have been assessed on the 30th day of June, 2012. 25. Section 25 deals with procedure to be followed in assessment of certain cases. In terms of sub-section (1), if any dealer who is liable to pay tax under this Act fails to submit return within the prescribed period, or if the return submitted by him appears to the assessing authority to the incomplete or incorrect, the assessing authority may, after making such enquiry as it considers necessary, determine provisionally the tax payable by the dealer to the best of its judgment. Provided that, before taking action under this sub-section on the ground that the return submitted by the dealer is incomplete or incorrect, the dealer shall be given a reasonable 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranted by this Court in W.P.(MD) No.4686 of 2014 and that the respondent proposing to make provisional assessment for the quarter ending 30.06.2013 and 30.09.2013 for non-production of the C and F Declaration Forms is unsustainable in law. 30. In W.P.(MD) Nos.4685 4686 of 2014, the contention raised is that as per the amended Section 22(2) of TNVAT Act, every dealer is deemed to have been assessed for the year on the 31st day of October of the succeeding year. Therefore, for the assessment years 2011-2012 and 2012-2013, the petitioner's original assessment is deemed to have have been completed on 31.10.2012 and 31.10.2013 respectively accepting the returns filed and taxes paid and there cannot be any further original assessment and the only course open to the respondent is to initiate revision proceedings under Section 27 of TNVAT Act. 31. In W.P.(MD) No.4685 of 2014, it is contended that 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 mor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.2012. Sub-section 2 of Section 22 would be relevant, which imposes duty upon the assessing authority to accept the returns submitted for the year by the dealer. However, such acceptance is not unconditional or absolute as the statute states that such acceptance of the returns would arise if the returns are in the prescribed form and accompanied with the prescribed documents and proof of payment of tax. While on this issue, it would relevant to note Section 21 of the Act, which deals with filing of returns, which also compels the registered dealer to file the return in the prescribed form showing the total and taxable turnover within the prescribed period, in the prescribed manner along with the prescribed documents and proof of payment of tax. This important aspect, which finds place in the statute cannot be ignored. If the sub-section (2) of Section 22 as amended is read without reference to these phrases '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 considerat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 22(2) of the Act. 39. The Honourable Supreme Court in the case of Union of India (cited supra) pointed out a writ petition should not have been entertained by the High Court as the assessing authority is entitled to complete the assessment as he thinks fit in exercise of his judgment and according to his understanding of the law and facts and for which purpose, he can call for and examine whatever documents he considers relevant. It was further pointed out that if the assessing authority fails to follow any judgment of the High Court or Supreme Court, the assessee had adequate statutory remedy by way of an appeal and revision against the assessment order. Therefore, the Court should not try to control the mode and manner in which an assessment should be made. It was pointed out that if the assessing authority is of the view that the enquiries are necessary to be made as to the price at which trucks were 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 comp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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