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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 ..... s 2008-09, 2009-10 and 2010-11. 2. The only ground on which impugned notices have been questioned is that they are barred by limitation, as prescribed under Section 30(2) of the PVAT Act. The said provision states that where, for any reason, the whole or any part of the turnover of business of a dealer has been assessed at a rate lower than the rate at which it is assessable, the assessing authority may, at 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th fitness cycle, iii) Article and equipments for physical and general exercise and iv) Weight lifting rods, GYM equipment, Joggers (Treadmill) cycle exercises and steppers fall. 6. The authority for Clarification and Advance Ruling has issued a clarification on 23.09.2013 stating that the said goods were residual goods and liable to be taxed at 12.5% upto 31.12.2011 and at 14.5% with effect from 01.01.2012 under Entry No.1 of Part A of Fourth Schedule of PVAT Act. Thus, by referring to the said Clarification and Advance Ruling, the respondent has issued the impugned notices on 28.02.2017 and would state 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 iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 before the Appellate Tribunal within sixty days of the ruling in the manner prescribed. 5) The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch re-assessment". 8. Before we examine the effect of the above provisions, it would be necessary to take note of the legal principle as to what would be effect of a Clarification and Advance Ruling issued by the concerned authorities. On this aspect, I am guided by the decision of the Hon'ble Division Bench in the case of Amul Ploycure Industries Ltd., Vs. Tamil Nadu Taxation Special Tribunal and others reported in 2004 Vol. 134 STC 526, wherein, the Division Bench, while dismissing a writ petition filed by the dealer challenging a Clarification held that Clarification can be assailed in the appeal as well as before the assessing officer on the basis of proper evidence, if the assessee so feels. No compulsion and binding nature on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings and appellate proceedings, respectively on all aspects of the case, and the assessing officer or the Appellate Assistant Commissioner has to give independent decision on the arguments before him. For all administrative purposes, the clarification given under sub-section (1) or (2) shall be binding on the officers subordinate to him by virtue of sub-section (3). 10. The provisions of the TNVAT Act also provides for Clarification and Advance Ruling under Section 49-A, which also contains similar provisions as contained in Sub-Section (4) of Section 77 of PVAT Act, except that there is no provision in paramateria under Section 77(3) of PVAT Act. Therefore, this Court has to interpret what would be intent and purport of the legislatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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