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TMI Blog2016 (12) TMI 1737X X X X Extracts X X X X X X X X Extracts X X X X ..... 6/13, Ext.P1 is a notice dated 4/2/2013 issued under Rule 6(5) of the Rules for assessment year 2006-07 on the ground that the C forms issued were bogus. Ext.P2 is a similar notice issued for the assessment year 2007-08. Exts.P3 and P4 are assessment orders finalised and completed for the respective years under Rule 6(5). (ii) In WP(C) No. 9685/15, Ext.P3 is the notice issued under Rule 6(5) of the Rules and Ext.P5 is the assessment order dated 8/1/2015 with respect to assessment year 2008-09. (iii) In WP(C) No. 12005/15, notices dated 23/1/2015 has been issued under Rule 6(5) for assessment years 2006-07, 07-08 and 08-09. Exts.P6 to P8 are the assessment orders dated 12/3/2015 for the respective years. (iv) In WP(C) No. 27276/15, Ext.P1 is the assessment order dated 30/7/2015 for the assessment year 2009-10 issued under Rule 6(5) of the CST Rules. (v) In WP(C) No. 32151/15, the challenge is to assessment order dated 6/8/2015 for the assessment year 2008-09. Ext.P1 is the assessment order. Pre-assessment notice under Rule 6(5) has been issued on 24/1/2015. (vi) In WP(C) No. 37721/15, Ext.P1 is the notice dated, 7/11/2015 under Rule 6(5) in respect of assessment year 2007-08 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n WP(C) No. 35639/16, Ext.P1 dated 17/8/2016 is the notice under Rule 6(5) of the assessment year 2009-10 and Ext.P3 is the assessment order dated 29/9/2016. 3. Substantially, all the petitioners challenge the assessment orders on the ground that those are barred by limitation. Therefore, the only question to be considered in the writ petitions is whether there is any limitation for issuing a notice under Rule 6(5) of the Central Sales Tax Rules (Kerala), 1957 (hereinafter referred as the 'Rules') and completing the assessment under the CST Act. 4. In the counter affidavit filed in WP(C) No. 29126/2013, it is stated that as per the Finance Act, 2010 and subsequent Finance Acts, time limit for completion of all pending assessments were extended. Further, in Finance Act, 2014, amendments have been brought in by introducing a new provision under Section 25B by which the Deputy Commissioner was entitled to extend the time limit for completing all pending assessments. In W.P.(C) 29126/2013, it is stated that an order under Section 25B has been issued by the Deputy Commissioner on 28/3/2014. 5. Heard the learned counsel appearing for the petitioners and the learned Special Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingly: Provided that if in any State or part thereof there is no general sales tax law in force, the Central Government may, by rules made in this behalf make necessary provision for all or any of the matters specified in this sub-section. 7. Rules have been framed by the State Government in exercise of power vested in it under Section 13(3) and (4) of the CST Act. Rule 6(1) makes it an obligation on a dealer registered under Section 7 of the Act to submit a report of the transactions in Form No.2 together with connected declaration forms in Form C, Form F and other documents. As per Rule 6(1A), the dealer is liable to pay tax within such period as prescribed. Rule 6(5) which is relevant for the purpose of the case reads as under:- "6(5) After the close of the year the assessing authority shall after such scrutiny of the accounts and after such enquiry as he considers necessary satisfy himself that the return or returns filed are correct and complete and finally assess under a single order the tax or taxes payable under the Act for the preceding year or for the year to which the return submitted relates as the case may be provided that if no return or returns have been submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect to the provisions of sections 22, 24 and section 25, be deemed to have been completed on the receipt of such return." Therefore, the contention is that though no time limit is specified for making an assessment under Section 6(5), being a self assessment, it is deemed to be completed on the date of filing subject to the right of the assessing officer to reopen the same, if it is found to be incorrect or incomplete. It is argued that even the procedure to be adopted under Rule 6(5) has to be adopted within a reasonable time and at any rate before the time specified under Rule 6(7). 9. Learned Special Government Pleader appearing on behalf of the State submitted that the issue with reference to the period of limitation has been decided by the learned Single Judge of this Court in Parisons Foods (P) Ltd. v. State of Kerala (2013 (3) KLT 10). In the said judgment, the learned Single Judge of this Court held that the embargo of limitation under Rule 6(7) cannot have any application for an assessment being done under Rule 6(5) of the Rules. It was therefore held that there was no scope for such hypothesis since Section 17 of KGST Act comes to the rescue of the State to complete the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct to the KGST Act as per the Kerala General Sales Tax (Amendment) Act 2005 by introducing Section 17A which reads as under:- "17A. Self Assessment- Notwithstanding anything contained in section 17, where the return submitted under the said section by any dealer, other than a dealer licenced under the Foreign Liquor Rules to serve liquor falling under the Schedule to this Act, is in the prescribed manner and accompanied by the prescribed documents, the return shall, subject to the provisions of section 18 and 19 be deemed to have been accepted as and when the assessing authority acknowledges the receipt of the return in such manner as may be prescribed." This amendment was notified in the Gazette on 28/8/2005. Therefore, even under the KGST Act, the principle of self assessment had been brought into force which is applicable to CST assessment also, in which event, when the return is submitted with all particulars, it is deemed to be complete. If the assessing authority does not take any steps pursuant to Rule 6(5), the only option available is to proceed under Rule 6(7) for assessment of escaped turnover in which event, rule of limitation applies. Rule 6(7)(i) of the Rules, read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scheme. As indicated hereinbefore, maximum period of limitation provided for in subsection (6) of Section 11 of the Act is five years. 20. In State of Orissa v. Debaki Debi on interpretation of the provisions of Section 12(6) of the Orissa Sales Tax Act, 1947, 36 months' time was considered to be the period of limitation for exercise of the revisional jurisdiction. 21. In S.B. Gurbaksh Singh v. Union of India Untwalia, J., speaking for the Bench, opined: (SCC p. 188, para 15) "15. Apropos the fourth and the last submission of the appellant, suffice it to say that even assuming that the revisional power cannot be exercised suo motu after an unduly long delay, on the facts of this case it is plain that it was not so done. Within a few months of the passing of the appellate order by the Assistant Commissioner, the Commissioner proceeded to revise and revised the said order. There was no undue or unreasonable delay made by the Commissioner. It may be stated here that an appeal has to be filed by an assessee within the prescribed time and so also a time-limit has been prescribed for the assessee to move in revision. The appellate or the revisional powers in an appeal or revision f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment has to be completed within a reasonable time, which shall not be later than the period prescribed under Rule 6(7). 16. The State has a case that by virtue of amendments made to the KGST Act in the Finance Act, 2010, and subsequent Finance Acts, the time for completing the assessment has been extended. According to me, such amendments will not render any assistance to the State while finalising the assessment under Rule 6(5). Rule 6(5) clearly provides that for taking action in respect of incorrect or incomplete returns, enquiry has to be conducted by the assessing authority after giving the dealer an opportunity to prove the correctness and completeness of the return submitted by him. It is after issuing such a notice that the assessing authority shall proceed to determine the turnover to the best of his judgment. This process has to be initiated within the specified time. If after issuing notice, there is delay in completing the assessment, the proviso in terms of Finance Act, 2010 and subsequent Finance Acts may render assistance to the State. In none of the cases referred above, notice had been issued within the period of four years. In fact, Abdul Majeed P.A. (supra) wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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