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TMI Blog2019 (7) TMI 1459X X X X Extracts X X X X X X X X Extracts X X X X ..... is a rubber stamp noting of no consequence. On that date, first, the period prescribed under section 27 of the Act had not expired. Therefore the legal fiction with respect to payment of admitted tax and his entitlement to claim ITC had itself not arisen. Even otherwise, that note remained only an expression of legal fiction contained in section 27 of the Act. It did not and it could not provide for any effect or consequence more than the legislature contemplated. Thus, it was not an assessment order for any other purpose. It would always remain limited to the twin purpose (noted above), for which it had been created by the legislature - in absence of any assessment order issued by him there existed no basis to invoke the power of rectification under section 31 of the Act, by the assessing authority. Consequently, the assessing authority never acquired any jurisdiction to issue any notice or pass any order under Section 31 of the Act. The entire exercise carried by the assessing authority was a nullity and it must therefore necessarily fall. The question of law (as framed above) is answered in the affirmative i.e. against the revenue and in favour of the assessee. - Sales/T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edule II of the Act. 5. The revenue admits that no order was passed by the assessing authority under Section 28 of the Act but it is claimed, a self assessment order had been passed on 09.11.2009. That order is actually a rubber stamp affixed on the order sheet. It reads as below: 6. Only the signature of the assessing officer has been affixed on the rubber stamp noting extracted above. 7. According to the assessing officer, he subsequently discovered that the assessee had been wrongly subjected to tax @ 4% whereas the goods in question were non-classified goods and therefore liable to tax @ 12.5% under Schedule V of the Act. First, he passed an ex parte order under Section 31 of the Act and subjected the assessee to differential rate of tax @ 8.5%. Then, upon an application filed under Section 32 of the Act, that ex parte order was recalled. However after hearing the assessee, assessment @ 12.5% was reiterated by the subsequent order dated 10.08.2016. It is that order which was made the subject matter in first appeal, that came to be allowed on the reasoning that there was no mala fide intent on part of the assessee. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. Having heard learned counsel for the parties, it is first necessary to note that the alleged order that has been sought to be rectified is admittedly one passed under Section 27 of the Act as has been self (rubber) stamped by the assessing authority vide order-sheet entry dated 09.11.2009. Section 27 of the Act reads as below: 27. Self assessment. -- (1) Subject to provisions of section 28, every dealer, who has submitted the return of last tax period as well as the prescribed Annexures of Consolidated Details in the prescribed form and manner, shall be deemed to have been assessed to an amount of tax admittedly payable on the turnover of purchase or sale or both, as the case may be, disclosed in such Annexures and to an amount of input tax credit shown admissible in such Annexures. (2) For all purposes under this Act and rules made thereunder, (a) Annexures of Consolidated Details submitted by a dealer, shall be deemed to be an assessment order and facts disclosed or figures mentioned in such Annexures shall be deemed part of such assessment order; and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o file that return expired. Upon completion of that period of time the imagination in law springs forth. 15. Thus, by way of first effect or consequence, the assessee becomes bound to discharge the admitted tax liability. Second, he earns a right to claim ITC. Both effects or consequences arise due to passage of prescribed time, solely on account of the return filed by him. That being done, no other or further consequence can ever arise as the legislature did not contemplate or provide for a third effect or consequence of the event of filing return by an assessee. The settled rule of interpretation prohibits any extension beyond the clearly visible legislative field, noted above. Reliance may be placed on that expression of law made by Justice S.R. Das (as his lordship then was), in his dissenting opinion in the Constitution bench decision of the Supreme Court in State of Travancore-Cochin Ors Vs. Shanmugha Vilas Cashewnut Factory, Quilon; AIR 1953 SC 333 (para 38), which principle was reiterated and applied by another Constitution bench of the Supreme Court in Bengal Immunity Co. Vs. State of Bihar; AIR 1953 SC 661 (para 31). Consequently, no assessment orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessing officer, it had to be a mistake found in any order that may have been passed by him at an earlier point in time. For exercise of power under section 31, there had to pre-exist an order passed by him, upon conscious exercise of his powers to make assessment/reassessment. In the present case, in absence of any order being passed by the assessing authority, either under Section 28 or 29 of the Act, it cannot be conceded to him that he had any power to make the rectification, as claimed. The alleged order sheet entry dated 09.11.2009, is a rubber stamp noting of no consequence. On that date, first, the period prescribed under section 27 of the Act had not expired. Therefore the legal fiction with respect to payment of admitted tax and his entitlement to claim ITC had itself not arisen. Even otherwise, that note remained only an expression of legal fiction contained in section 27 of the Act. It did not and it could not provide for any effect or consequence more than the legislature contemplated. Therefore, it was not an assessment order for any other purpose. It would always remain limited to the twin purpose (noted above), for which it had been create ..... X X X X Extracts X X X X X X X X Extracts X X X X
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