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TMI Blog2019 (7) TMI 468X X X X Extracts X X X X X X X X Extracts X X X X ..... ent could not have invoked the provisions of subsection (8A) of Section 34 of the VAT Act and issued the impugned show cause notices. The impugned notice seeking to carry out assessment of turnover of the petitioner under section 34(8A) of the Gujarat Value Added Tax Act, 2003 for the A.Y. 2012-13 and A.Y. 2011-12, respectively, are quashed and set aside - petition allowed - decided in favor of petitioner. - R/SPECIAL CIVIL APPLICATION NO. 15093 of 2018 With R/SPECIAL CIVIL APPLICATION NO. 15094 of 2018 - - - Dated:- 20-6-2019 - MR J. B. PARDIWALA AND MR MR A. C. RAO, JJ. For The Petitioners : MR UCHIT N SHETH (7336) For The Respondent (s) : NOTICE SERVED (4) AND MS MAITHILI MEHTA AGP ORAL ORDER ( PER : HONOURABLE MR.JUSTICE A.C. RAO) 1.00. As common questions of law arise in both these petitions and between the same parties, both these petitions are heard, decided and disposed of by this common judgement and order. 2.00. By way of Special Civil Application No.15093 of 2018, the petitioner assessee has challenged notice dated 04/05.09.2018 issued by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing to initiate issue based assessment proceedings for the year 2012-13 and 2011-12 respectively on the ground that the Stainless Steel wire is classifiable under residuary Entry No.87 of Schedule II to the VAT Act attracting tax rate of 12.5%+2.5% additional tax and not under the Entry 85 of Schedule II as assessed. Therefore, the impugned notices under section 34(8A) of the VAT Act are wholly without jurisdiction, bad and illegal. 2.06. Mr.Uchit Sheth, further submitted that section 38(8A) of the VAT Act is a special assessment provision enabling the authorities under the VAT Act to frame assessment for a particular transaction or claim instead of assessing the entire returns or Books of Accounts. Proceedings under such sub-section can be initiated notwithstanding notice for assessment issued under any other sub-section. However, the provision cannot be invoked in a case where assessment is already framed for a particular period and the transactions / claims have already been assessed to tax under the VAT Act by adopting a particular view. Action on the part of the Assessing Officer to change his opinion relating to classification by invoking section 34(8A) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duced the books of account and all evidence on which the dealer relies in support of his returns or to produce such evidence as specified in the notice. (b) in respect of such class of dealers as the State Government may, by rules, specify; ( 3) The dealer shall provide all cooperation and reasonable assistance to the Commissioner as may be required in case the proceedings under this section are required to be conducted at his place of business. ( 4) If proceedings under this section are to be conducted at the place of business of the dealer and it is found that the dealer is not functioning from such premises or no such premises exists, the Commissioner shall assess to the best of his judgment the amount of tax due from him. ( 5) If the Commissioner is unlawfully prevented from conducting the proceedings under this section, he may assess to the best of his judgment the amount of tax due from the dealer and may further direct that the dealer shall pay, by way of penalty, in addition to the amount of tax so assessed, a sum equal to the tax amount. ( 6) If any dealer- (a) has not furni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manner, any transaction of sale or purchase, or that any claim has been incorrectly made, then in such a case notwithstanding any notice for assessment has been issued under other provisions of this section or any other section of this Act, the prescribed authority may, after giving such dealer a reasonable opportunity of being heard, initiate assessment of the dealer in respect of such transaction or claim: Provided that where such proceedings are under section 73 or section 75, the prescribed authority shall transfer the proceedings relating to such transaction or claim directing the concerned assessing authority to assess the dealer in respect of such transaction or claim: Provided further that the prescribed authority shall, notwithstanding anything contained in section 17, be deemed to have the requisite jurisdiction and power to assess such dealer in respect of such transaction of sale or purchase or claim, covered by clause (a) and such assessment proceedings shall, for all purposes of this Act, be deemed to have been transferred to such authority. ( b) The assessment proceedings under this subsection shall be with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a dealer, the amount of tax assessed for any period under this section or reassessed for any period under section 35 exceeds the amount of tax already paid under sub-section (1), (2) or (3) of section 30 by the dealer in respect of such period by more than twenty five per cent of the amount of tax so paid, there shall be leveled on such dealer a penalty not exceeding one and one-half times the difference between the tax paid under section 30 and the amount so assessed or reassessed. Section 35 of the VAT Act pertains to Turnover escaping assessment and it reads as under; 35. Turnover escaping assessment: (1) Where after a dealer has been assessed under section 32, 33 or 34 for any year or part thereof, the Commissioner has reason to believe that the whole or any part of the taxable turnover of the dealer in respect of any period has,- (a) escaped assessment; or (b) been underassessed; or (c) been assessed at a rate lower than the rate at which it is assessable; or (d) wrongly been allowed any deduction therefrom; or (e) wrongly been allowed any tax credit therein, the Commissioner may serve a notice on the dealer and after giving the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be an impediment for an operation of the enactment. See in this connection the observations of this Court in The South India Corporation (P) Ltd., v. The Secretary, Board of Revenue, Trivandrum Anr., AIR 1964 SC 207 at 215-[1964] 4 SCR 280. 4.06. In ICICI Bank Ltd., v. SIDCO Leathers Ltd., reported in 2006 (10) SCC 452 , the Hon ble Supreme Court, at Paragraphs 34, 36 and 37, held as follows: 34. Section 529-A of the Companies Act no doubt contains a non-obstante clause but in construing the provisions thereof, it is necessary to determine the purport and object for which the same was enacted. 36. The non-obstante nature of a provision although may be of wide amplitude, the interpretative process thereof must be kept confined to the legislative policy. 37. A non-obstante clause must be given effect to, to the extent the Parliament intended and not beyond the same. 4.07. The provision of sub-section (8A) of Section 34 of the VAT Act cannot be understood or interpreted as enabling or empowering the Assessing Officer to correct an error, which might have been committed in the co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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