9911796707
TMI Blog2015 (5) TMI 338X X X X Extracts X X X X X X X X Extracts X X X X ..... acts as can be gathered from the record of each matter are as under : - Sales Tax Reference No.02 of 2004 The assessee was holding registration number from S.Y.2038 Kartak Sudh Ekam to 24/03/82 on the name of M/s. Jagdish Oil Mill vide registration no.65422824. The assessee was assessed by the Sales Tax Officer for the period of S.Y.2038 Kartak Sudh Ekam to 24/03/82 after impounding the accounting material and after scrutiny and the total dues was found to be Rs. 9,05,794.89 paisa including the penalties. The assessee preferred a First Appeal before the Assistant Commissioner of Sales Tax who insisted for condition of deposit of amount which was not deposited but the assessee insisted for deciding the appeal on the point of limitation without payment. Thereafter, the Assistant Commissioner passed the order dated 22.04.1993 and confirmed the order of the Sales Tax Officer. The matter was carried in appeal before the Tribunal and the Tribunal found that the assessment was bared by the limitation as provided under Section 42 of the Act. Under the circumstances, the present reference to this Court on the point of limitation. Tax Appeal No.80 of 2015 The assessee was having registra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, we need to examine the mechanism in the mode for assessment. Section 41 of the Act reads as under : " 41. Assessment of taxes . (1) The amount of tax due from a Registered dealer shall be assessed separately for each year during which he is liable to pay the tax or, on an application by any such dealer to that effect, for such period exceeding one year during which he is so liable as is specified in the application ; Provided that when such dealer fails to furnish any declaration or return relating to any period of any year by the prescribed date, the Commissioner may, if he thinks fit, assess the tax due from such dealer separately for different parts of such year. Provided further that the Commissioner may, subject so such conditions as may be prescribed, and for reasons to be recorded in writing, assess the tax due from any dealer during a parts of a year. (2) If the Commissioner is satisfied that the declarations or returns furnished in respect of any period are correct and complete, he shall assess the amount of tax due from the dealer on the basis of such declarations or returns. (3) If the Commissioner is not satisfied that the declarations or returns furnished in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of his judgment, the amount of tax due from him. (5) If a dealer does not furnish declarations or returns in respect of any period, by 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. (6) If the Commissioner has reason to believe that a dealer is liable to pay tax in respect of any period, but has failed to apply for registration within time as required by section 29, the Commissioner shall, after giving him a notice in the prescribed form for a reasonable opportunity of being heard, assess to the best of his judgment, the amount of tax (if any) due from the dealer in respect of such period, any any period subsequent thereto. (7) Notwithstanding anything contained in this section, if a dealer liable to pay tax has not employed regularly any method of accounting or if in the opinion of the Commissioner, assessment cannot be made properly on the basis of the accounts maintained by a dealer, the Commissioner shall assess to the best of his judgment, the amount of tax due from such dealer. (8) Any assessment made under this section shall be without p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n or the return furnished are not complete or not correct, he may call upon the assessee to produce the evidence and then may make the assessment in a case where the material is available and produced by the assessee, the assessment will be made under Section 41(3) of the Act but in a case where the dealer / assessee fails to comply with any notice issued under Subsection 3 of section 41 of the Act, the Assessing Officer may assess the amount of tax as per his best judgment. Further, in a case where the dealer has not furnished any declaration or return by the prescribed date, the Assessing Officer after giving opportunity of hearing to the assessee, may assess the tax to the best of his judgment and in those cases, the assessment would be under Section 41(3) read with Section 41(5) of the Act. But the important aspect is that, the process for the best judgment would be available even in cases where the assessee has not employed regularly any method of accounting, Assessing Officer cannot make proper assessment on the basis of accounts maintained by the Dealer and such situation is taken care of by Section 41(7) of the Act. But be it recorded that principal assessment, in cases whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion, in cases where the notice under Section 41(6) of the Act is issued, the period may be eight years or the four years as the case may be, but in cases where the assessment under Section 41(3) or 41(4) of the Act and even in cases when the assessment is made under Section 41(5) of the Act, the limitation would be of three years from the end of the year in which the last monthly or quarterly annual return is filed or was to be filed. 9. The attempt was made on the part of learned Assistant Government Pleader to contend that in a case where no annual return is filed, such would be an assessment under Section 41(7) independently for which no limitation has been provided or if considered under Section 41(6), the assessment order can be said as within the outer limit either eight years or four years as the case may be. 10. We cannot countenance the submission made by learned Assistant Government Pleader for two reasons, one is that for applying the time limit as provided under Section 42(2) of the Act, the condition precedent is issuance of notice under subsection 6 of the 41 of the Act, and only, thereafter the question of applying time limit of eight years or four years may aris ..... X X X X Extracts X X X X X X X X Extracts X X X X
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