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TMI Blog2022 (10) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 28.8.2017 (Annexure P-1) passed under Section 9 (2) of the Act of 1956 read with Section 22 (1) of the Act of 2005, respondent Department reassessed tax and held petitioner liable to pay an amount of Rs.1,97,87,694/- towards tax, interest and penalty. 3. Subject matter in WPT No.162/2018 is the assessment year 2013-14 and challenge is to the order dated 28.8.2017 (Annexure P-1) whereby respondent Department exercising powers under Section 9 (2) of the Act of 1956 read with Section 22 (1) of the Act of 2005, reassessed tax and held petitioner liable to pay an amount of Rs.2,99,14,429/- towards tax, interest and penalty. 4. As all the above writ petitions are filed by same registered dealer and the order under challenge of reassessment is with respect to different assessment years, the grounds raised in writ petitions are one and the same, hence, these petitions were heard together and are being disposed of by this common order. 5. Petitioner company is a registered dealer under the Act of 2005 and is engaged in the business of manufacturing and selling 'pan masala'. Petitioner company is having its Head Office at Kanpur (UP) and manufacturing unit in Rajnandgaon (CG). Petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner made inter-state sale of pan masala product manufactured at the unit in Rajnandgaon (CG) to purchasing dealer located in Delhi. At the time of purchase, the purchasing dealer produced declaration in Form-C issued by the Department of Trade and Taxes, Government of NCT, Delhi for the relevant period i.e. 4th Quarter 2014-15. Based on Form-C submitted by purchasing dealer, sales tax was assessed and deposited with respondent Department on 14.6.2016. Petitioner received notice for initiating re-assessment proceedings based on investigation report received vide letter of respondent No.2 dated 24.3.2017. In re-assessment proceedings initiated by respondent No.3-Assistant Commissioner, Commercial Tax, Rajnandgaon (CG), without considering reply to show-cause notice submitted by petitioner mentioning that status of purchasing dealer in official website of respondent Department has been shown as 'active', therefore, the petitioner sold goods manufactured by it and charged tax at the reduced rate considering Form-C issued by the Department to the purchasing dealer. Respondent Department only considered report forwarded by the Commissioner, Raipur and held the petitioner company liabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t authority has rightly passed the order impugned and revisional authority has not erred in dismissing revision petition filed by petitioner under Section 49 (1) of the Act of 2005. She further contended that order impugned is appellable under Section 48 of the Act of 2005, therefore, present writ petition is not maintainable in view of availability of efficacious alternative remedy to the petitioner. 8. I have heard learned counsel for the parties and perused the documents available on record. 9. As regards the ground raised by learned counsel for the respondent State that order impugned is appellable under Section 48 of the Act of 2005, therefore, writ petition is not maintainable. The Hon'ble Supreme Court in case of Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai reported in (1998) 8 SCC 1 while considering the issue/objection on maintainability of writ petition under Article 226 of the Constitution of India, has held that alternative remedy not to operate as a bar in atleast three contingencies; (i) where writ petition has been filed for enforcement of any of the fundamental rights; (ii) where there has been a violation of principle of natural justice; and (iii) w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... long with such return or before the date on which the return for the subsequent quarter becomes, due; or (ii) in his returns for a year and makes an application for that purpose before the date on which the return for the first quarter of the subsequent year becomes due,the assessment of such dealer for that quarter or year,as the case may be shall be made in accordance with the provisions of sub-section (4) within a period of three months from the date of receipt of the application. (2) Where a registered dealer other than the registered dealer referred to in the proviso to sub-section (1) has furnished,- (i) all the returns for a year and/or; (ii) revised return for any quarter or quarters of such year, in the prescribed manner and within the prescribed time or before the date on which the return for the first quarter of the subsequent year becomes due, (iii) has paid the tax payable according to such returns or revised returns as also interest payable, if any, and (iv) has furnished the statement under clause (b) of sub-section (1) of section 19, within the prescribed time, the returns furnished or revised returns furnished by such dealer for that year shall be accep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis thereof. (6) xxxxxxxxx (7) xxxxxxxxx (8)Notwithstanding anything contained in sub-section (7), where assessment or re-assessment proceedings in respect of any dealer relating to any period cannot be completed before the expiry of the period specified herefore in the said sub-section, the State Government, may by notification, for reasons to be recorded in writing, extend the period for the completion of such assessment proceedings in respect of such dealers by such further period as may be specified in such notification....." 12. Section 22 of the Act of 2005 provides for assessment/ re-assessment of tax in certain circumstances. Relevant provisions of Section 22 are extracted below for ready reference;- "22.Assessment/reassessment of tax in certain circumstances.- (1) Where an assessment or reassessment of a dealer has been made under this Act or the Act repealed by this Act and for any reason any sale or purchase of goods liable to tax under this Act or the Act repealed by this Act during any period,- (a) has been under assessed or has escaped assessment; or (b) has been assessed at a lower rate; or (c) any wrong deduction has been made while making the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "order, n. 1. A command, direction, or instruction. See-MANDATE (1). 2. A written direction or command delivered by a court or judge. ●The word generally embraces final decrees as well as interlocutory directions or commands. - Also termed court order; judicial order. See MANDAMUS. [Cases: Federal Civil Procedure 928;Motions 46, C.J.S. Motions and Orders §§ 1-3, 13, 50, 59.]"An order is the mandate or determination of the court upon some subsidiary or collateral matter arising in an action, not disposing of the merits, but adjudicating a preliminary point or directing some step in the proceedings." 1 Henry Campbell Black, A Treatise on the Law of Judgments § 1, at 5 (2d ed. 1902)."While an order may under some circumstances amount to a judgment, they must be distinguished, owing to the different consequences flowing from them, not only in the matter of enforcement and appeal but in other respects, as, for instance, the time within which proceedings to annul them must betaken. Rulings on motions are ordinarily orders rather than judgments. The class of judgments and of decrees formerly called interlocutory is included in the definition given in [modern codes] o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment. After recording that held, thus the jurisdictional fact and condition precedent for invoking provisions of Section 22 (1) of the Act of 2005 i.e. the order of assessment, was not in existence on the date of issuing notice for reassessment under Section 22 (1) of the Act of 2005. Therefore, the Assessing Officer was jurisdiction-less to initiate reassessment proceedings under Section 22 (1) of the Act of 2005 and the order of reassessment ultimately passed is without jurisdiction and without authority of law and de hors the provisions contained in Section 22 (1) of the Act of 2005, as such, it deserves to be quashed. 15. The aforementioned order passed by the learned Single Judge was challenged by the respondent State by filing writ appeals bearing Nos.687/2018, 691/2018 & 705/2018, and the Division Bench of this High Court considering the relevant provisions of the Act of 2005 dismissed the writ appeals vide CAV order dated 18.8.2022. Relevant part of the order reads thus:- "29. Rule 20 under Chapter VI of VAT Rules, 2006 relates to "Returns". Rule 20(2)(d), on which reliance is placed by Mr. Sharma was inserted by notification dated 02.06.2011. Subsequently, by noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. The ratio of this case also does not have any application to the facts of the present case." 16. In this writ petition also the powers invoked by the authority concerned under Section 22 (1) of the Act of 2005 is questioned. Respondents in their reply to writ petition have not denied contention of petitioner that there is no specific order of assessment. In fact, respondents have pleaded that the question of law raised by the petitioner relying upon the order passed in WPT No.77/2017 and other connected writ petitions, is still pending before the Division Bench. It is not the case of respondent that there is an order of assessment. From the above discussions it is clear that there was no order of assessment, which is a condition precedent to invoke jurisdiction under Section 22 (1) of the Act of 2005 in the case of present petitioner also. 17. In view of above facts and the order passed in W.A. No.687/2018 and other two connected writ appeals, I am of the view that in absence of there being any order of assessment, respondent No.4 Commercial Tax Officer, Rajnandgaon was not having any jurisdiction to pass the orders of reassessment under Section 22 (1) of the Act of 2005 and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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