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TMI Blog2015 (11) TMI 1015X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority was seized of the matter and the assessment order had not gone out of his hands? iv) When admitted by the department that the assessment orders had not been dispatched before 2.7.2013, can it be assumed that the assessing authority had lost his locus poenitentia on the assessment orders? v) Whether the Tribunal was justified in holding that the instructions dated 13.12.2004 and 14.3.2006 issued by the Excise and Taxation Commissioner, Haryana are not binding on the assessing authority for not being issued under section 56(3) of the Act? 2. A few facts relevant for the decision of the controversy as narrated in the appeal may be noticed. Ex parte best judgment assessment order dated 2.7.2013, Annexure A.1 was passed whereby demand of tax and interest of Rs. 8,33,398/- and Rs. 11,55,047/- were created under the HVAT as well as the Central Sales Tax Act, 1956 respectively. Alongwith the order, a demand notice in form VAT N.4 was issued under the provisions of Rule 39 (1) of the Haryana VAT Rules, 2003 (in short, "the HVAT Rules"). The assessment order, the demand notice as well as the envelope dated 2.7.2013 were served on the appellant on 13.7.2013. The appellant filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Union of India, 2010 (257) ELT 42 (Del.), (iv)Government Wood Works vs. State of Kerala, 1988(69)STC 62; (v) Commissioner of agricultural Income Tax v. Kappumalai Estate, 1998(148) CTR 565 (Ker.); (vi)Commissioner of Income Tax, Delhi, Central-I vs. Escorts Farms P.Limited, 1989(180) ITR 280 (Del.); (vii)Ambuja Cements Limited vs. Union of India, 2009(14) STR 3 (P&H). 4. After hearing learned counsel for the appellant, we do not find any merit in the appeal. 5. What meaning is to be assigned to the word "made or passed" while framing assessment under Section 15 of the HVAT Act, is the question agitated by the learned counsel for the appellant in this appeal. 6. The order of assessment had been passed under Section 15(4) of the Act which reads thus:- "15 (4). If a dealer, having furnished returns in respect of a period, fails to comply with the terms of a notice issued under sub-section (2) or subsection (3), the assessing authority shall, before the expiry of three years from the close of the year to which such returns relate, assess to the best of its judgment the amount of tax due from him." 7. A plain reading of the aforesaid provision shows that it nowhere requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Sales Tax, UP vs. Mangal sen Shyam Lal Bhagwan Industries: Intervener, (1975) 35 STC 621 has laid down the principle that "service of an order of assessment in the context of the scheme of the Act and the Rules made thereunder means something subsequent and distinct from the mere making of the order of assessment. It implies formal communication of the order after it has been passed on termination of the proceedings, so that the party to whom it is communicated may, if aggrieved, seek redress in a higher forum in the manner prescribed by law." 10. Still further, the Andhra Pradesh High Court in Rajmal Multanmal and Company vs. Commercial Tax Officer and others, (1976) 37 STC 252 had expressed as under:- "There is nothing in the language of sub section (3) which is susceptible of an interpretation that communication of an order passed by the Deputy Commissioner should also be within the period of four years. It only contemplates exercise of revisional jurisdiction within a period not exceeding four years. Once that jurisdiction is exercised by passing an order, the fact that it was communicated to the petitioner after the expiry of the period of four years is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on comes into force from the date it is passed and the concerned authority loses power to change it. However, the commencement of limitation period depends upon the intention of relevant statutory provision. If the intention is to provide a remedy to the person adversely affected, the statutory provision has to be constituted that limitation commences from the date of communication of order. If however the relevant provision lays down only period in which competent authority should exercise its power, the date on which such power was exercised by making an order, is relevant. This is based on the principle that Government is bound by the proceedings of officers but persons affected are not, unless the proceedings are communicated to them. Section 35-E comes under the latter category. The period of one year fixed under Section 35-E(3) should therefore be given its literal meaning and limitation period determined from the date of order." It nowhere provided that the order made or passed is required to be communicated within the period of limitation, otherwise it would be time barred. The factual matrix being different, the judgment relied upon does not come to the rescue of the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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