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TMI Blog2022 (8) TMI 696X X X X Extracts X X X X X X X X Extracts X X X X ..... 008 was received in the office of the assessing officer on 29.12.2012. This inter se delay in the office of the Commercial Taxes would not be a ground to consider the assessments concluded on 28.2.2014 as reasonable. As per the law enunciated by the Hon ble Apex Court in the case of Bharat Steel Tubes Ltd. [ 1988 (5) TMI 335 - SUPREME COURT] , even in the absence of any prescribed period of limitation, the assessment has to be completed within a reasonable period. What such reasonable period would be, would depend upon facts of each case. One view can be that it should be a period not exceeding five years as the legislature has fixed the limitation of five years for completing assessments in case of escaped turnover. Unless there be an assessment made soon after the period to which such assessment relates, the question of consideration of escapement would indeed become difficult to consider and examine. The Hon ble Apex Court having regard to the return filed by the assessee along with the payment of admitted tax held that no prejudice to the assessee will be caused if the assessing authority is permitted to complete the assessment even at that stage. If no assessment is made, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ? 2) Whether on the facts and in the circumstances of the case, was the appellate tribunal was justified in holding that the provisions pertaining to re-assessment cannot be applied to an assessment when computing the period of limitation especially when the word assessment would take into its connotation a re-assessment in the comprehensive sense? 3. The petitioner is a Members Club providing various facilities to its members and is registered under the provisions of the Act. Assessments were concluded for the assessment years in questions under Section 6(3) of the Act vide orders dated 28.2.2014. Orders were passed imposing penalty and interest under Sections 7 and 5-A(2-A) of the Act. Being aggrieved, the assessee had preferred appeals before the first appellate authority, who confirmed the orders of the assessing authority insofar as tax and interest is concerned, modified the penalty levied under Section 7 of the Act equal to the tax by the assessing authority to Rs.14,11,500/- for each of the assessment year. On further appeals before the Tribunal, the appeals came to be dismissed. Hence, this revision petition. 4. Learned Senior Counsel appearing for the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 13(1)(b) of the Act was issued and served on the assessee. In response to the said notice, the assessee club has filed its objections. However, the assessee had discharged the tax liability. The intelligence report dated 24.4.2008 was forwarded to the assessing officer with the covering letter dated 29.12.2012. The assessing officer, thereafter issued the proposition notice dated 12.2.2014 and final assessment orders were passed on 28.2.2014. 7. Learned counsel submitted that during the relevant period, levy of tax under Section 3-D of the Act was under litigation. The Division Bench has rendered the judgment in the case of Commissioner of Commercial Taxes, Gandhinagar, Bangalore and ors., v. Hennur-Banaswadi Cosmopolitan Club, Bangalore, reported in (2011) 42 VST 99 (Karn), on January 19, 2011, allowing the writ appeals filed by the department setting aside the interpretation placed by the learned Single Judge insofar as Section 3-D of the Act is concerned. Section 6(3) cannot be equated to Section 7-A of the Act. Hence, the limitation, if any, prescribed under Section 7-A, that cannot be imported to Section 6(3) of the Act. The authorities as well as the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed under Section 6(3) of the Act on 28.2.2014; there was no deferment order or stay order passed by the Courts to conclude the assessments. The constitutional validity of Section 3-D of the Act which provides for levy and collection of tax on luxury provided in a Club to the members who are required to pay any amount as fee, deposit, donation or any other such charges by whatever name called, was challenged by some institutions/clubs. The learned Single Judge vide order dated August 20, 2008, has upheld the constitutional validity, however interpreted the levy under Section 3-D, to be on the basis of utilization of the facilities by the members of the Club. Being aggrieved by the said interpretation, the revenue has preferred writ appeals insofar as the learned Single Judge holding that Section 3-D does not stipulate any levy on mere existence of the facility and the tax is leviable only on the member who utilizes the facility available in the Club. The said appeals were disposed of by the Division Bench on January 19, 2011 allowing the writ appeals filed by the State setting aside the interpretation placed by the learned Single Judge insofar as Section 3-D is concerned. Conse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an assessment has already been made and there has been under assessment or escaped assessment therein. The relevant portion of said Section 19 reads thus; Where an assessment has been made under this Act or any Act repealed by Section 52 and if for any reason any sale or purchase of goods chargeable to tax under this Act or any Act repealed by Section 52 during any period has been under assessed or has escaped assessment or assessed at a lower rate or any deduction has been wrongly made therefrom, the Commissioner may, at any time within five calendar years from the date of order of assessment, after giving the dealer a reasonable opportunity of being heard and after making such enquiry as he considers necessary, proceed in such manner as may be prescribed to reassess.... 15. The said provision i.e., Section 19 itself had made it very clear that, where an assessment has been made under the said Act or any Act repealed by Section 52 and if for any reason any sale or purchase of goods chargeable to tax during any period has been under assessed or has escaped assessment or assessed at a lower rate, re-assessment could be done. In that scenario, it was held that in a case wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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