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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 ..... e dated 05.09.2018 issued by the Deputy Commissioner of State Tax, Gandhinagar 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. 2011-12. 2.02. The petitioner No.1 is a Public Limited Company engaged in the business of manufacture and sales of Stainless Steel wires. The petitioner No.2 is Managing Director and shareholder of the petitioner No.1 Company. The petitioners were registered under the Gujarat Value Added Tax Act, 2003 (for short "the VAT Act") as well as under the Central Sales Tax Act, 1956. 2.03. According to the petitioner, the case of the petitioners for year 2012-13 was taken up for scrutiny / audit assessment by the Assessing Officer and after verification of the Books of Accounts and sales turnover, the turnover of Stainless Steel wires for the period 2012- 13 was assessed at the rate of 4%+1% additional tax under Entry No.85 of Schedule II to the VAT Act. According to the petitioner, the said assessment was neither challenged by the petitioner nor the order was taken in revision or assessment within stipulated time period and thus, the said assessment order has attained fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndents. She has contended that sub-section (8A) of section 34 contains a non-obstante clause and therefore, it operates independently whether the assessment is pending or not. 3.01. Ms.Maithili Mehta, learned AGP relied on the decision of this Court in the case of M/s.Samay Sales, through Proprietor Rajendra Jethabhai Keshwani Versus State of Gujarat rendered in Special Civil Application No.6686 of 2018 dated 16/07/2018. It is submitted that non-obstante clause in section 34(8A) empowers the Deputy Commissioner to initiate assessment and therefore, the impugned notice in question is legal and valid. The petition is misconceived and deserves to be rejected. 4.00. Heard the learned counsel for the respective parties and considered the material on record. 4.01. The relevant sections 34 and 35 are required to be considered. Section 34 of the VAT Act pertains to Audit Assessment, which reads as under; "34. Audit Assessment:- (1) Subject to the provisions of sub-section (2), the amount of tax due from a registered dealer shall be assessed in the manner hereinafter provided, separately for each year, during which he is liable to pay tax. (2) (a) Where, (I) the Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of any period or the self-assessment by the prescribed date; (b) has furnished incomplete or incorrect returns for any period; (c) has availed tax credit for which he is not eligible; (d) has employed such method of accounting which does not enable the Commissioner to assess the tax due from him;(e) has knowingly furnished false or incorrect self assessment; he shall, after giving the dealer an opportunity of being heard, direct that the dealer shall pay, by way of penalty, a sum equal to one and a half time of the amount of tax assessed on account of the said reason in the audit assessment. (8) If the Commissioner, upon information which has come into his possession, is satisfied that any dealer who has been liable to pay tax under this Act in respect of any period, has failed to get himself registered, the Commissioner shall proceed to assess to the best of his judgment the amount of tax due from the dealer in respect of such period and all subsequent period. In making such assessment, he shall give the dealer an opportunity of being heard. The Commissioner may, if he is satisfied that the default was without reasonable cause, direct that the dealer shall pay, by way of pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h transaction or claim and penalty and interest, if any, shall be levied or demanded from such dealer, at the time of assessment to tax under the other provisions of this section in respect of the said period or periods relating to such transaction or claim. Explanation - For the purpose of this subsection, "prescribed authority", "the said authority", "such authority" and "any authority" shall mean, the Commissioner or, as the case may be, the authorities appointed under section 16 and other officers or persons to whom the Commissioner has delegated his power in this behalf." (9) No assessment under sub-sections (2), (5), (6) or (7) shall be made after the expiry of four years from the end of the year in respect of which or part of which the tax is assessable. (10) No assessment under sub-section (8) shall be made after the expiry of eight years from the end of the year in respect of which or part of which the tax is assessable. Provided that where any assessment is required to be made in pursuance of an order of any court or authority, such fresh assessment shall be made at any time within two years from the date of such order. Provided further that in computing the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw and the setting in which the clause to be interpreted occurs." 4.04. In Union of India v. I.C.Lala reported in AIR 1973 SC 2204, the Hon'ble Supreme Court held that "non obstante clause does not mean that the whole of the said provision of law has to be made applicable or the whole of the other law has to be made inapplicable. It is the duty of the Court to avoid the conflict and construe the provisions so that they are harmonious." 4.05. In Chandavarkar Sita Ratna Rao v. Ashalata S.Guram reported in 1986 (4) SCC 447, Hon'ble Supreme Court held as follows: "67. A clause beginning with the expression "notwithstanding any thing contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force, or in any contract" is more often than not appended to a section in the beginning with a view to give the enacting part of the section in case of conflict an overriding effect over the provision of the Act or the contract mentioned in the non-obstante clause. It is equivalent to saying that in spite of the provision of the Act or any other Act mentioned in the non-obstante clause or any contract or document mentione ..... X X X X Extracts X X X X X X X X Extracts X X X X
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