9911796707
TMI Blog2018 (12) TMI 420X X X X Extracts X X X X X X X X Extracts X X X X ..... he opinion that the provision would have no application to the present set of cases. The cases in which notices alone were issued and completion of assessment has not been effected, wherever it has been upheld, necessarily the assessee would be entitled to file objections within 30 days from the date of receipt of the certified copy of this judgment and the Assessing Officer would complete the proceedings in accordance with law, leaving open the remedy of the assessee to file statutory appeals as against the quantum, but not against the question of limitation. It is made clear that the assessment orders wherever they have been upheld, have been upheld only on the question of limitation. - WA. No. 1284 of 2017 - - - Dated:- 17-9-2018 - MR K. VINOD CHANDRAN AND MR ASHOK MENON, JJ. For The Appellants : SPECIAL GOVERNMENT PLEADER SRI. C. E. UNNIKRISHNAN For The Respondent : ADVS. SMT. K. HYMAVATHY AND SRI. N. MURALEEDHARAN NAIR JUDGMENT The issue raised in the above writ appeals is with respect to the limitation under Section 6(5) of the Central Sales Tax Rules, 1957 [for brevity, the Rules]. Before we proceed with the matter, we have to notice the chan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contemplated; looking at the nature of the statute, rights and liabilities there under and other relevant factors, as has been held in State of Punjab v. Bhattinda District Co-operative Milk Producers India Ltd. [2011 (11) 363] . The learned Single Judge accepted the said proposition and found so in paragraph 15 of the impugned judgment: 15.In the said circumstances, I am of the view that even going by the statutory provision under Rule 6(5), the assessment has to be completed within a reasonable time, which shall not be later than the period prescribed under Rule 6(7). 4. The learned Government Pleader submits that the said finding is no longer good law for reason of the binding precedent of a Division Bench in Parisons Foods (P) Ltd. v. State of Kerala [2017 (3) KLT 1] . A reading of the decision, just now cited, indicates that the issue arose under both the KGST Act and the KVAT Act. It was held that there could be no adoption of the period of limitation provided under sub-rule (7) or (8); as limitation under sub-rule (5) of Rule 6. Bhattinda District Co-operative Milk Producers India Ltd. [supra] was noticed to find that therein the provision dealt with was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visos introduced in the various Finance Acts could render assistance to the State. Finding that in none of the cases above referred, notice has been issued within a period of four years, the learned Single Judge placed reliance on Abdul Majeed P.A. v. State of Kerala [2012 20 KTR 554(Ker) and allowed the writ petitions setting aside the notices for assessment as also the assessment orders. 6. We have to notice that Abdul Majeed P.A. [supra] specifically dealt with a proceeding under Rule 6(7), where there was a re-asessment proposed and found the four year period to be sacrosanct. The Division Bench of this Court in Parisons Foods (P) Ltd. [supra] having found that period, not capable of adoption to Rule 6(5), we cannot accept the finding that the four year period would be the reasonable period for completion of assessment even as per Rule 6(5) of the CST Rules. 7. The learned Special Government Pleader has placed before us a decision of the Hon'ble Supreme Court in Bharat Steel Tubes Ltd. Another v. State of Haryana Another [1988 (3) SCC 478]. The Hon'ble Supreme Court had referred to Indian Aluminum Cables Ltd. Another v. Excise and Taxation Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a limitation is provided, it is proper for the State Governments to require, by statutory rules or appropriate instructions, to ensure completion of assessments with expedition and reasonable haste but subject to rules of natural justice. 9. Respectfully bowing to the above observations as also the finding in Bhattinda District Co-operative Milk Producers India Ltd. [supra] we have to see what would be the reasonable period depending upon the nature of the statute, rights and liabilities thereunder and other relevant factors. As noticed in Parisons Foods (P) Ltd., [supra] there being no limitation provided under Rule 6(5); by virtue of Section 9(2) of the CST Act, one has to necessarily look at whether there is any provision under the general sales tax law of the State, providing a limitation for assessment. As was noticed, the KVAT Act, which is the general sales tax law for the subject assessment years in all the writ petitions, deems by Section 21, completion of an assessment without any specific order, on the filing of the return in the prescribed manner and accompanied with the prescribed documents. Section 25 speaks of assessment of escaped turnover, for which a per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 46 available with the returns, the assessment of such dealer for the relevant year for the purpose of section 25 shall be treated as pending and the time limit mentioned thereunder shall not be applicable in such cases. 11. Reliance is placed on sub-clause (iii) to contend that the CST assessment has to be treated as pending for the purpose of Section 23 and the time limit mentioned therein shall not be applicable in such cases. We have to notice that the amendments have been brought in after the limitation expired in certain cases, which is before us for consideration. In any event, we have to emphasise that the provision brought in is for extension of period for the purpose of Section 25, which speaks of an assessment of escaped turnover and not the initial completion of assessment. We are of the opinion that the provision would have no application to the present set of cases. 12. Looking at the individual cases, we have to notice the following: (i) W.A. No.1211 of 2017 was concerned with the assessment year 2008-2009 and the notice issued was produced at Ext.P2 dated 17.03.2016 beyond the five year period. W.A. No.1211 of 2017 would stand rejected. (ii) W.A. No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n W.A. No.1179 of 2017 for the assessment year 2009-2010, a notice was issued on 17.08.2016 beyond the limitation period. W.A. No.1179 of 2017 would stand rejected. (x) W.A. No.1233 of 2017 was concerned with the assessment year 2007-2008 and the notice issued was dated 07.11.2015 beyond the period of limitation. W.A. No.1233 of 2017 would stand rejected. (xi) W.A. No.1333 of 2017 dealt with three assessment years 2006-2007, 2007-2008 and 2008- 2009. The notices issued under Rule 6(5) were all dated 23.01.2015 beyond the period of limitation for all the said assessment years. W.A. No.1333 of 2017 would stand rejected. (xii) W.A. No.1284 of 2017 dealt with notices dated 14.10.2015 for four assessment years, 2007- 2008 to 2010-2011. For the first three assessment years the notice is beyond the period of limitation and for the last, it is within the period of limitation. W.A. No.1284 of 2017 is partly allowed, sustaining the assessment for the year 2010-2011 on the question of limitation. (xiii) W.A. No.1189 of 2017 dealt with assessment year 2009-2010 and the notice was dated 13.08.2015. The proceedings having been initiated after the period of limitation, the same has to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
