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TMI Blog2015 (5) TMI 338X X X X Extracts X X X X X X X X Extracts X X X X ..... bserved by us herein above, Section 41(7) is no independent mode of assessment but rather a step in furtherance to the assessment which is applicable to both type of assessment, either under Section 41(3), 41(4) and also 41(5) of the Act as well as for Section 41(6) of the Act. It cannot be said that merely because a mode was undertaken under Section 41(7) of the Act, the limitation provided under Section 42(1) of the Act for completing the assessment, would not be applicable. It is hardly required to be stated that even in case where the assessment is to be made, the examination of books of accounts or the consideration of books of accounts will be one of the aspects, to be considered before finalising the assessment. If the appropriate books of accounts are maintained, the details of return can be verified, but if not maintained, and the conditions are satisfied, subsection 7 of Section 41 of the Act may be invoked. But thereby, it cannot be said that such is an independent mode of assessment. Further, Section 42 of the Act recognizes only two type of assessment, one in a case where the notice under subsection 6 of the Section 41 has been issued and the another assessment woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. Tax Appeal No.80 of 2015 The assessee was having registration no.45105491. The assessment was made for the total amount of ₹ 2,20,693/including the penalty under Section 41(3) read with 41(7) of the Sales Tax Act. In appeal, on the point of limitation, the order of the Assessing Officer was confirmed. The matter was further carried in appeal before the Tribunal and the Tribunal found that the assessment for S.Y.2043 was barred by limitation and, therefore, set aside the order. Under the circumstances, the present appeal before this Court. Special Civil Application No.2093 of 2015 The assessee was having registration no.6471551. The assessment was made under Section 41(7) of the Sales Tax Act for the total amount of ₹ 1,09,997/including the interest and penalty. The matter was carried in appeal and the Appellate Authority confirmed the order on the point of limitation. The matter was carried in Revision before the Tribunal and the Tribunal allowed the Revision by holding that the order of assessment for S.Y.2039 is barred by limitation. Under the circumstances, the present petition before this Court. 3. We have heard Mr.Trivedi, learned advocate a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or returns. (3) If the Commissioner is not satisfied that the declarations or returns furnished in respect of any period are correct and complete, and he thinks it necessary to require the presence of the dealer or the production of further evidence; he shall serve on such dealer in the prescribed manner a notice requiring him on a date and at a place specified therein, either to attend and produce or cause to be produced all evidence on which such dealer relies in support of his declarations or returns, or to produce such evidence as is specified in the notice. On the date specified in the notice, or as soon as may be thereafter, the Commissioner shall, after considering all the evidences which may be produced, assess the amount of tax due from the dealer. Provided that where a notice under this subsection is not issued to the dealer- (a) on or before the 31st March, 1992, in relation to any year commencing on any day before the 31st March, 1990, or (b) within a period of one year from the date by which the last quarterly or, as the case may be, annual return is required to be furnished under subsection (1) of section 40, in relation of any other year subsequent to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss to the best of his judgment, the amount of tax due from such dealer. (8) Any assessment made under this section shall be without prejudice to any penalty or prosecution for an offence, under this Act. 6. Section 42 of the Act provides for time limit to complete the assessment, which reads as under : 42. Time limit for completion of assessment. (1) No order of assessment for a year commencing on the 1st day of April 1998, or part of such year or any year thereafter or part of such year shall be made under subsection (3) or (4) of section 41 at any time after the expiry of three years from the end of the year in which the last monthly, quarterly or, as the case may be, annual return is filed. (2) Where the Commissioner issues a notice under su-bsection (6) of section 41, to any dealer for assessment of tax in respect of any period, no order of assessment shall be made for such part of the period, if any, as is prior to- (a) a period of eight years ending on the last date of the year immediately preceding the year in which such notice is issued, in a case where the Commissioner has reason to believe that such dealer has failed to apply for registration within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 where subsection 7 of Section 41 of the Act is applied and the dealer is having registration, would be under Section 41(3) read with 41(4) of the Act if the returns are filed but the assessment may be under Section 41(5) of the Act if the returns are not filed. However, in cases where the assessee or the Dealer, has not obtained any registration as required, a separate procedure under subsection 6 of the Section 41 of the Act has been provided. But even in those cases, it may be open to the Assessing Officer to invoke the provision of Section 41(7) of the Act. But in those cases, the assessment will be made under Section 41(6) read with 41(7) of the Act. The aforesaid shows two separate modes of assessment broadly; one of a dealer who is registered with the sales tax authority and the one of a dealer who is not at all registered with the Sales Tax authority. As observed earlier, even in a case where the dealer is registered with the Sales Tax authority, two situations are separately considered, one in a case where the return is f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cedent 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 arise. But not in a case where no notice under Section 41(6) of the Act has been issued. Therefore, all assessment barring the assessment made after issuance of the notice under Section 41(6) of the Act, would stand covered by the provisions of Section 42(1) of the Act for the time limit within which the assessment has to be completed. The second reason is that subsection 6 of Section 41 of the Act does not include the contingency of non filing of the return, but rather the basic requirement is that the registration is not obtained or the person who has failed to apply the registration within the time prescribed. In any event as observed by us herein above, Section 41(7) is no independent mode of assessment but rather a step in furtherance to the assessment which is applicable to both type of assessment, either under Section 41(3), 41(4) and also 41(5) of the Act as well as for Section 41(6) of the Act. It cannot be said that merely because a mode was undertaken under Section 41(7) of the Act, the limitation provided under S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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