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TMI Blog2015 (4) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment or re-assessment is for a definite purpose. An assessee cannot be subjected to assessment or re-assessment proceeding for an indefinite period. If the contention of the respondents, as advanced, is accepted, it would lead to a situation where an Assessing Officer would have the liberty to seek clarification from the Commissioner in the garb of reference thereby extending the limitation for framing assessment for an indefinite period and the Commissioner can also without any limitation of time provide the clarification whereafter the extended limitation of 2 years would commence from the end of the year in which the clarification is received by the Assessing Officer. This will certainly lead to an absurd situation and confer unfettered limitation on the Assessing Officers while framing assessment or re-assessment. - impugned notices dated 10.02.2009 and 17.02.2009 are clearly unsustainable being beyond the period of limitation and are accordingly adjudged void ab initio. Consequently, those are set aside and quashed. - Decided in favour of assessee. - WP(C) No. 708 of 2009, WP(C) No. 709 of 2009 - - - Dated:- 4-3-2015 - Hon ble The Chief Justice (ACTG.) And Ujjal Bhuy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment should not be carried out against the petitioner for the period from April, 2000 to December, 2000 for paying tax on sales of Shalimar Coconut Oil at the rate of 4% instead of 12%, since coconut oil is covered by Entry No. 22 of Schedule-II appended to the AGST Act, which prescribes rate of tax at 12%. Petitioner was also asked to show cause as to why penalty should not be levied. 07. At that stage, petitioner moved this Court by filing WP(C) No.1989/2001, which was disposed of vide order dated 23.03.2001 by directing the respondents, particularly, respondent Nos. 2 3 of the present petition, to dispose of the representation submitted by the petitioner after giving an opportunity of hearing. It was further held that after the decision was taken about exigibility of the item to taxation, the authority should proceed as per such decision and in accordance with the provisions of law. Liberty was given to the petitioner to approach this Court again, if so advised. 08. Though there were some communications between the petitioner and the AGST authorities, it appears that no decision was taken by respondent Nos.2 3. 09. Ultimately, after a long gap, respondent No. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I of the AGST Act. Referring to section 19(3) of the AGST Act, it was stated that notwithstanding anything contained in sub-section (1) or sub-section (2) of section 19, an assessment, re-assessment or re-computation to give effect to any order or direction in appeal, revision or reference may be made at any time before expiry of 2 years from the end of the year in which the order in appeal, revision, or reference is communicated to the Assessing Officer. It was stated that since the order of respondent No. 2 was communicated to the office of respondent No. 3 on 21.11.2006, the assessment for the years in question would become time barred on 31.03.2009. Petitioner was, therefore, asked to produce books of accounts for the years under consideration, failing which, it was stated that best judgment assessment would be made under section 17(5) of the AGST Act, read with section 108 of the Assam Value Added Tax Act, 2003. 14. It was at this stage that the present two writ petitions came to be filed by the petitioner. 15. This Court by order dated 20.02.2009 issued notice and passed an interim order suspending the impugned notices dated 10.02.2009 and 17.02.2009. 16. Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h reference to your letter referred to the above, I am to state that Coconut Oil is generally used in the State of Assam as Hair Oil only Assam General Sales Tax Act, 1993 being a taxation Act for the State of Assam and applying the test of common parlance Coconut Oil , it is clarified that the item Shalimar Coconut Oil will be treated as Hair Oil , for the purpose of levying tax under entry at Sl. No. 22 of Schedule-II of the Assam General Sales Tax Act, 1993. Commissioner of Taxes (i/c), Assam, Dispur, Guwahati-6. 22. This was followed by the impugned notice dated 10.02.2009 asking the petitioner to produce books of accounts, documents and evidence in support of the returns filed for the three assessment years. When the petitioner filed reply and contended that the impugned notice dated 10.02.2009 was barred by limitation, respondent No. 3 issued the subsequent impugned notice dated 17.02.2009, which reads as under: - No. 40436 Date 17-2-09 To, M/s. Shalimar Chemical Works Ltd. Rehabari, Guwahati. Sub:- Notice for production of books of account under AGST CST Act. Ref:- This office notice number 40315 dated 10.02.2009 and your reply dated 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3 to respondent No.2 seeking clarification - in the clarification of respondent No. 2 dated 21.11.2006 the date of the letter is given as 17.03.2003 whereas in the impugned notice the date of the letter is mentioned as 28.02.2003, the same may be ignored as in the ultimate analysis it may not have a decisive bearing on the outcome of the proceeding. 24. Having noticed the above, we may now turn to section 19 of the AGST Act, which prescribes the time limit for completion of assessment and re-assessment. Section 19 reads as under: - Time limit for completion of assessment and re-assessment 19.(1) No assessment shall be made under section 17 after the expiry of three years from the end of the year in respect of which or part of which the assessment is made or, in a case where the dealer has furnished a return or a revised return under sub-section (4) of section 16 after the expiry of two years (from the end of the year) in which such return or revised return is received by the Assessing Officer, whichever is later: Provided that in a case under sub-section (6) of section 17, the assessment may be made at any time before the expiry of eight years from the end of the yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... communicated on 21.11.2006, the extended limitation period of 2 years would commence from 31.03.2007 (end of that year) and would continue upto 31.03.2009. Therefore, it is contended that the two impugned notices dated 10.02.2009 and 17.02.2009 are within the period of limitation. 26. Before we examine the contention of the respondents as to whether the letter written by respondent No. 3 to the respondent No. 2, whether on 28.02.2003 or on 17.03.2003, seeking clarification regarding taxability of coconut oil and the clarification given by respondent No.2 on 21.11.2006 can be treated to be a reference within the meaning of section 19(3) of the AGST Act, we may briefly refer to an order of this Court in the case of Hindustan Petroleum Corporation Ltd. Vs. State of Assam Ors., reported in 2013 57 VST 1 (Gau). In that case, the issue involved was whether the re-assessment orders were barred by limitation under section 19(2) of the AGST Act. While examining the said issue, this Court held that limitation period prescribed in the AGST Act is not for providing to make assessment , but for making assessment , in which case, mere initiating proceeding is not enough, but final orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt under section 113 read with Order 43 of the Civil Procedure Code. The Civil Procedure Code has clear provisions for appeal, revision, review and reference. Likewise, under the Income Tax Act, 1961, before the provision for appeal to the High Court under section 260A was inserted by the Finance Act, 1998 w.e.f. 01.10.1998, the provision of reference used to be invoked either by the assessee or by the Commissioner. Under section 256(1), either the assessee or the Commissioner could move the Income Tax Appellate Tribunal to make a reference to the High Court on any question of law arising out of the order of the Tribunal. On refusal by the Tribunal to make such a reference, the assessee or the Commissioner could approach the High Court under sub-section (2) to require the Tribunal to make a reference. Thus the Income Tax Act, 1961 recognised separate provisions of appeal, revision and reference. In fact, most statutes dealing with revenue matters provide for reference to be made to higher authorities, including to the High Court. For example, the Central Excise Act, 1944 provides for reference to the High Court on any question of law from the order of the Tribunal. The Customs Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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