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TMI Blog2020 (7) TMI 417X X X X Extracts X X X X X X X X Extracts X X X X ..... cribed for making the assessment was within three years from the date when the annual statement was filed or was due to be filed, whichever was later. The said provision was amended and the period was extended to six years. In the Explanation added, it was clarified that the period of six years would apply to those cases in which the period of six years had not yet expired. Thus, we are not considering the issue as to whether the amended period of limitation of six years would apply to the present cases or not. We are proceeding by assuming that there was period of six years from the date of filing of the annual statement or when it was due. The facts are not disputed, admittedly the notices are beyond limitation and it is in these circumstances that interference is made in the writ petitions. The impugned notices/assessment orders are set aside - Petition allowed. - C. W. P. Nos. 16308, 16310, 16322, 16325, 16609, 16613, 16744, 16747, 16763, 17448, 18541, 18746, 21771, 22133, 22289, 22584, 22735, 22924, 23172, 23461, 23620, 23916, 24079, 24107, 24127, 24146, 24445, 24485, 24616, 24641 of 2019 - - - Dated:- 19-2-2020 - C. W. P. Nos. 24670, 24970, 24983, 25556, 26425, 2646 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2010-11 Notice 18 23916 of 2019 2010-11 Notice 19 24079 of 2019 2009-10 Notice 20 24107 of 2019 2010-11 Notice 21 24127 of 2019 2009-10 Notice 22 24146 of 2019 2009-10 Notice 23 24445 of 2019 2010-11 Notice 24 24485 of 2019 2010-11 Notice 25 24616 of 2019 2010-11 Notice 26 24641 of 2019 2009-10 Notice 27 24670 of 2019 2009-10 and 2010-11 Notice 28 24970 of 2019 2010-11 Notice 29 249 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... garh) were issued in the year 2019 and in C. W. P. Nos. 28591, 30350, 30393, 33859 and 33938 of 2019, after issuance of notices in 2019, assessment orders were finalised in the year 2019. The case of the petitioners is that notices/assessment orders are beyond limitation as prescribed under section 29(4) of the Act, hence are liable to be quashed. 3. Section 29(1) to (4) during the relevant assessment years read as under: 29. Assessment of tax.-(1) Where a return has been filed under sub-section (1) or sub-section (2) of section 26 or in response to a notice under sub-section (6) of section 26, if any tax or interest is found due on the basis of such return, after adjustment of any tax paid on self-assessment and any amount paid otherwise by way of tax or interest, then, without prejudice to the provisions of sub-section (2), an intimation shall be sent to the person specifying the sum so payable, and such intimation shall be deemed to be a notice of demand issued under sub-section (11) and all the provisions of this Act shall apply accordingly: Provided that except as otherwise provided in this sub-section, the acknowledgment of the return shall be deemed to be an intima ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tement for the assessment year 2006-07 has already been filed, can be made till the 20th day of November, 2014. Explanations: (1) The limitation period of six years for an assessment under sub-section (2) or sub-section (3), shall also apply to those cases in which the aforesaid period of six years has yet not expired. (2) It is clarified that prior to commencement of the Punjab Value Added Tax (Second Amendment) Act, 2013, the Commissioner was not required to issue any notice to the concerned person before extending the limitation period of assessment'; and (ii) after sub-section (10), the following sub-section shall be inserted, namely:- '(10A) Notwithstanding anything to the contrary contained in any judgment, decree or order of any court, tribunal or other authority, an order passed by the Commissioner under sub-section (4) prior to commencement of the Punjab Value Added Tax (Second Amendment) Act, 2013 shall not be invalid on the ground of prior service of notice or communication of such order to the concerned person'. 5. As per section 29(1), if any amount is found due on the basis of return filed, an intimation is to be sent to the person specifyi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... computer entries and records of petitioners related to framed assessments. 10. The learned counsel for the respondents submitted that considering the circumstances, a Memo No. 3628, dated July 30, 2018 was issued to all Excise and Taxation Officers, Excise and Taxation Department and in pursuance to the memo notices were issued. He placed reliance on section 29(7) of the Act and argued that in case of fraud or misrepresentation or escaped assessment, the assessment order can be amended. The same is reproduced below: (7) The designated officer may, with the prior permission of the Commissioner, within a period of three years from the date of the assessment order, amend an assessment, made under sub-section (2), or sub-section (3), if he discovers under-assessment of tax, payable by a person for the reason that,- (a) such a person has committed fraud or wilful neglect; or (b) such a person has misrepresented facts; or (c) a part of the turnover has escaped assessment: Provided that no order amending such assessment, shall be made without affording an opportunity of being heard to the affected person. 11. The learned counsel for the respondents was not able to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... available, more so against challenge to show-cause notice or assessment order directly. The law is well-settled that exception can be given to the self imposed restriction, for enforcement of fundamental right in case of violation of principles of natural justice, the proceedings are without jurisdiction or vires are challenged. In Whirlpool Corporation v. Registrar of Trade Marks, Mumbai [1998] 8 SCC 1, the Supreme Court held as under: 14. The power to issue prerogative writs under article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the fundamental rights contained in Part III of the Constitution but also for 'any other purpose'. 15. Under article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is av ..... X X X X Extracts X X X X X X X X Extracts X X X X
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