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TMI Blog2017 (8) TMI 625X X X X Extracts X X X X X X X X Extracts X X X X ..... tate that in view of the embargo placed under Sub-section (3) of Section 77 of the PVAT, the respondent cannot take a decision on the said issue and the issue having been decided by the Advance Ruling authority only on 23.09.2013, the impugned notices issued on 28.02.2017 are well within the period of limitation, which expires only on 22.09.2017. Hence, it is the contention of the learned Government Advocate that the limitation for reopening the assessment should be computed from 23.09.2013 and therefore, the impugned notices are not time barred. The crucial words to be interpreted are "an application" and "an applicant" occurring in sub-section (3) of Section 77 of PVAT Act. In my considered view, in the present factual matrix, both these expressions can refer to only the assessee/dealer, who has approached the authority under Section 77 of the PVAT Act. If any other interpretation is to be given, then it would be expanding the scope of Sub-section 3 of Section 77 of the PVAT Act and would be directly in conflict with Section 30(2) of the PVAT Act, which prescribes an outer time limit for the Assessing Officer to re-do an assessment in the event he comes to a conclusion that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any time within a period of five years from the expiry of the year to which the return under the Act relates, re-assess the tax due after making such enquiry as it may consider necessary and after giving the dealer a reasonable opportunity to show cause against such re-assessment. 3. The petitioner's case is that for the assessment year 2008-2009, if at all, the Assessing Officer seeks to re-open the assessment, it should have been done before 31.03.2014 and likewise, for the assessment year 2009-2010, it will be 31.03.2015 and for the assessment year 2010-11, it will be 31.03.2016. The impugned notices issued on 28.02.2017, are beyond the five year period, as stipulated under Section 30(2) of the PVAT Act and therefore, they are liable to be set aside on the ground of lack of jurisdiction. 4. The respondent, Revenue, on the other hand would contend that in the light of Sub-sections (3) and (4) of Section 77 of the PVAT Act, the Assessing Officer, cannot proceed to decide any issue in respect of which an application has been made by an applicant under Section 77 of the PVAT Act and is pending and on such Clarification and Advance Ruling given by the said authority in exer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not below the rank of the Commercial Tax Officer to clarify, in the manner prescribed, any aspect of the implementation of this Act. (2) No application shall be entertained where the question raised in the application,- (i) is already pending before any officer or authority of the Department or Appellate Tribunal or any Court; (ii) relates to a transaction or issue which is designed apparently for the avoidance of tax: Provided that no application shall be rejected under this sub-section unless an opportunity has been given to the applicant of being heard and where the application is rejected, reasons for such rejections shall be recorded in the order. (3) No officer or any other authority of the Department shall proceed to decide any issue in respect of which an application has been made by an applicant under this section and is pending. (4) The order of the authority shall be binding,- (i) on the applicant who had sought clarification; ii) in respect of the goods or transaction in relation to which a clarification was sought; and (iii) on all the officers other than the Commissioner, Provided the dealer does not file an appeal be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of Section 28A(3) of the Tamil Nadu General Sales Tax Act, 1959. The Assessing Authority would certainly be bound only by the appellate order. It is not necessary for the Court to go into the question of correctness of the clarification issued and that would depend on the evidence which would be lead by the assessee before the concerned authorities. 9. The Tamil Nadu Taxation Special Tribunal in Salt Sales Corporation and another Vs. Deputy Commercial Tax Officer (Additional) and others [2004 Vol.134 STC 529), while upholding the vires of Section 28A of the Tamil Nadu General Sales Tax Act, held that any clarification given by the Commissioner under sub-section (1) of Section 28-A, i.e., as to the correct rate of tax on particular goods, will bind the parties who sought the clarification. If it is a society or association it will bind all its members. However, it will be open to them to canvass such clarification in assessment proceedings before the assessing officer and appellate proceedings before the Appellate Assistant Commissioner. The ultimate independent decision should be that of the assessing or the Appellate Assistant Commissioner. It was further held t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or transaction in relation to which a clarification was sought. 13. Admittedly, the respondent has already assessed the petitioner to tax in respect of the three assessment years and what the Assessing Officer seeks to do by issuing impugned notices is to revise the assessment, that too, based upon a Clarification given by the Advance Ruling authority at the instance of third party dealers. Therefore, the respondent cannot be given the advantage of reopening the assessment under the guise that the Advance Ruling authority has given a clarification, which will bind the goods dealt with by the petitioner. If the interpretation given by the respondent is to be accepted once again, this will run counter to the finality attached to an order of assessment as mentioned in Section 30(2) of the PVAT Act. One more submission made by the learned Government Advocate is that the authority while exercising the power under Section 77 of the PVAT Act does not enact a law or lays down a new principle, but clarifies what is in existence and such clarification could be applied retrospectively. Though, at the first blush, this argument appears to be impressive, but on a closer scrutiny, it is other ..... X X X X Extracts X X X X X X X X Extracts X X X X
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