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TMI Blog2022 (5) TMI 556X X X X Extracts X X X X X X X X Extracts X X X X ..... the notices for reopening of the assessment had been issued and re-assessment was not completed, it was incumbent on the part of the petitioner to have maintained the records. If the petitioner failed to maintain the records, petitioner has to face the consequences. The respondent is therefore directed to complete the assessment of the assessment years 2006-07 to 2009-10 within a period of three months from date of receipt of this order. Needless, to state, before passing such orders, the petitioner shall be heard - In case the petitioner fails to file any reply or participate in the personal hearing, the respondent shall proceed to pass appropriate orders on merits and in accordance with law based on the available materials. Petition dismissed. - W.P.Nos.10118, 10132, 10122, 10125 & 10129 of 2019 And WMP.Nos.10679,10683,10685, 10689 and 10692 - - - Dated:- 8-4-2022 - Honourable Mr.Justice C.Saravanan For the Petitioner : Mr.R.L.Ramani Senior Counsel for Mr.B.Raveendran (in all W.Ps.) For the Respondent : Mr. Richardson Wilson Additional Govt.Pleader (in all W.Ps.) COMMON ORDER The petitioner has challenged the notice issued under Section 27 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20935 of 2019 P.Ramanatha Aiyar The Law Lexicon- Second Edition reads as follows: 'Determine: To fix all boundaries of ; to mark off ; to separate to fix the determination of ; to limit ; to bound ; to bring to an end ; to fix the form or character of ; to shape ; to regulate ; to settle ; to prescribe imperatively ; to ascertain definitely ; to bring to a conclusion ; to settle by judicial sentence ; to decide. Determine: 1. to settle or decide ; to come to a decision ; to lay down decisively or authoritatively ; 2. to put and end to ; 3. to ascertain definitely. DETERMINE . Travacancord Cochin General Sales tax Rules (1950) R.33. The use of the words proceed to assess and 'determine' would not lead to different consequences or result. S.T.Officer V. Yengar and Sons, AIR 1970 SC 311 at 313, 314. A statutory power to a government department to determine questions does not enable it to legislate or make it an autocrat free to act as it pleases ; it must exercise, and act with discretion, and if that be not done in a bonafide manner the King's Bench can and will interfere. (Sroud)' 18. A perusal of the above reveals that the mos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the limited purpose of saying that a larger Bench of Hon'ble Supreme Court has also relied on P.Ramanatha Aiyar The Law Lexicon- Second Edition for determining the dimensions and dynamics of the term 'determine'. In Ashok Leyland, paragraphs 75 to 77 are of relevance and the same read as follows: '75. The word determination must also be given its full effect to, which pre-supposes application of mind and expression of the conclusion. It connotes the official determination and not a mere opinion or finding. 76. In Law Lexicon by P.Ramanatha Aiyar, Second Edition, it is stated : Determination or order. The expression 'determination' signifies an effective expression of opinion which ends a controversy or a dispute by some authority to whom it is submitted under a valid law for disposal. The expression 'order' must have also a similar meaning, except that it need not operate to end the dispute. Determination or order must be judicial or quasi-judicial. Jaswant Sugar Mills Ltd. V. Lakshmi Chand AIR 1963 SC 677, 680 [Constitution of India Art.136] . 77.In Black's Law Dictionary, 6th Edition, it is stated: A 'determinat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment Years 2006-2007, 2007-2008, 2008-2009, 2009-2010 2010-2011, there was no further response from the respondents and therefore the impugned notices for re-assessment under Section 27(4) of the Tamil Nadu Value Added Tax Act, 2006 in the year 2019 are liable to be quashed. 8. The learned Senior Counsel further submits that earlier notices and the impugned notices were issued by a different authority and therefore, on this score also, the impugned notices have to go. 9. As far as the impugned notice for the Assessment Year 2010- 2011 is concerned, it was submitted that assessment was deemed to have been completed on 30.06.2012 by way of operation of law. It is therefore submitted that the limitation under Section 27 of the Tamil Nadu Value Added Tax Act, 2006 expired in the year 2017 and therefore, the impugned notice was clearly time barred and without jurisdiction and therefore are liable to be quashed. 10. The learned Senior Counsel further additionally relied on the following decisions:- i. The Sales Tax Officer and Others Vs. Sudarsanam Iyengar and Sons , (1969) 2 SCC 396. ii. M.Gulam Mohideen Vs. The Commissioner of Agricultural Income Tax, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as Vijay Kumar , (1970) 25 STC 74. A specific reference was made to paragraph No.4 from the said decision which reads as under:- 4. It was argued on behalf of the appellant that the High Court erred in taking the view that the limitation provided under Section 10 of the Act has to be imported in all the assessments made under Section 8 of the Act and the High Court failed to appreciate that Section 10 provided a period of three years for escaped turnover and no turn over could be said to have escaped when once proceedings were properly initiated and were pending. It was contended for the appellant that the Sales Tax Authorities had jurisdiction to assess the respondent to sales tax for the year 1955-56 and the High Court was not right in holding that the assessment for that period was barred by time. In our opinion, the argument put forward on behalf of the appellant is well founded and must be accepted as correct. It is not disputed in the present case that the respondent was a registered dealer under the Act and on August 13, 1956 the Sales Tax Officer, Indore made an order of assessment under Section 8(1)( b ) of the Act to the best of judgment on the ground that the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oints which arose in that case for determination were: ( 1 ) when can a proceeding be said to commence and ( 2 ) if a proceeding has commended within the prescribed period but is pending when such period expires and an order is finalised therefore, whether such an order is invalid on the ground of its being time-barred. The appellant there was a registered dealer, carrying on business in bidis . For the year 1949-50 i.e. for the period from October 22, 1949 to November 9, 1950, he submitted only one return on October 5, 1950, for one quarter and defaulted in respect of the other quarters. He was served a notice on August 13, 1954, under Section 11(1) and (2) of the C.P. and Berar Sales Tax Act, 1947, in respect of the turnover for the said period. He filed the returns subsequently, but contended that the proceedings before the Sales Tax Commissioner were barred by time. He then filed a writ petition in the High Court challenging the said proceedings. For the year 1950-51 he had filed no return at all and was served a notice on October 15, 1954, under Section 11(4) of the Act. That notice was within three years from October 16, 1951, which fell within the fourth quarter of the year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... serve that even in a case where no return has been made, but the Commissioner initiates proceedings by issuing the notice either under Section 10(3) or under Section 11(4), the proceedings would be pending till the final assessment is made. This decision therefore clearly lays down the principle that in the case of a registered dealer the proceedings before the Commissioner start factually when a return is made or a notice is issued and no question of limitation would arise where such proceedings are taken before the expiry of the prescribed period of three years though an assessment order is finalised after the expiry of such period. In other words, the assessment proceedings commence in the case of a registered dealer either when he furnishes a return or when a notice is issued to him under Section 11(4) or Section 10(3), and if such proceedings are taken within the prescribed time though the assessment is finalised subsequently even after the expiry of the prescribed period, no question of limitation would arise. The view expressed by this court in Ghanshyam Das v. Regional Assistant Commissioner of Sales Tax, Nagpur has been followed by the court in two recent cases - Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Tvl. Victus Dyeings case referred to supra concluded that the orders passed by the Assistant Commissioner (ST), Rural Assessment Circle, Tirupur was beyond the limitation. 22. The learned Additional Government Pleader for the respondent referred to the decision of this Court in Kurlon Enterprises Limited Vs. State Tax Officer, Chennai , (2021) 95 GSTR 274 (Mad) which was cited by the learned Senior Counsel for the petitioner and submitted that in the said case, the learned Single Judge has merely quashed the order and remitted the case back to the respondent. 23. The learned Additional Government Pleader submits that the observations in paragraph No.15 of the decision of the Bharat Steel Tubes Limited and Another Vs. State of Haryana and Another , (1988) 3 SCC 478 : (1988) 70 STC 122, the long delay is not in the interests of the assessees or the State and therefore, the petitioner should be directed to reply to the notices. 24. The learned Additional Government Pleader submits that for the purpose of Section 27 of the Tamil Nadu Value Added Tax Act, the Government has issued a Circular / Notification, pursuant to which, the respondent has issued the impu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the impugned Notices are beyond the scope of scheme for re-assessment. 32. The learned Additional Government Pleader for the respondent submits that scheme of assessment under Section 22(4) of the Act includes the re-assessment and therefore, re-opening or re-assessments opening does not arise for the assessee to state that the assessee cannot produce documents. 33. I have considered the arguments advanced by the learned senior counsel for the petitioner and the learned Additional Government Pleader. At the outset , I would like to would refer to the following chart:- Assessment Years Original Assessment completed Time limit for re-opening of Assessment Expired Notices issued for Re-assessment based on Inspection Second Notice issued for Re-assesment Reply filed with documents Impugned Notices issued for reassessment based on circular 2006-07 24.09.2010 19.02.2019 30.09.2010 30.11.2010 21.10.2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision of this court in W.P.Nos. 20925 of 2019 et cetera batch the case of Tvl.VictusDyings versus The Asst Commissioner (ST) vide order dated 29.7.2019 cited by the learned Senior Counsel is not applicable to the facts of the first four assessment years. In the said case, the notice for revising the assessment was issued for the first time after expiry of limitation as in the case of the petitioner for the assessment year 2010-11. The ratio in the said case at best can be applied for the assessment year 2010-11. 39. The other decision cited by the learned senior counsel for the petitioner do not further the case of the petitioner. Therefore, there is no merits in the challenge to the impugned notices barring notice dated 28.2.2019 for the assessment year 2010-11. 40. Therefore the assessment which was completed long after the period of limitation was held barred by law. This is not the case in the case of the petitioner. It is also not open to the petitioner to plead the helplessness by citing rule 6 (11) of the Tamil Nadu Value Added Tax Rules, 2007. As long as the notices for reopening of the assessment had been issued and re-assessment was not completed, it was incum ..... X X X X Extracts X X X X X X X X Extracts X X X X
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