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TMI Blog2023 (1) TMI 339X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Counsel is one which has been dealt with extensively by the Division Bench while deciding the matter in M/S TATA TELESERVICES LIMITED VERSUS STATE OF CHHATTISGARH, COMMISSIONER, COMMERCIAL TAX, RAIPUR (C.G.) , COMMERCIAL TAX OFFICER, CIRCLE-5, RAIPUR (C.G.) [ 2018 (3) TMI 1416 - CHHATTISGARH HIGH COURT] . This has further been followed by the Division Bench again in the aforementioned TAXC No.74/2022, reiterating the same stand earlier taken by the Division Bench. It has been emphatically held that unless there is a specific order of assessment under Section 21(1) passed by the Authorities concerned, there cannot be reopening of an assessment made under Section 21(2) of the VAT Act. Petition alowed. - Writ Petition (T) No. 154 of 2022 - - - Dated:- 15-12-2022 - Hon ble Shri Justice P. Sam Koshy For the Petitioner : Mr. Moolchand Jain, Advocate, a/w Mr. Vijay Shanker Mishra, Advocate For the Respondents : Mr. Rahul Jha, Govt. Advocate ORDER ON BOARD 1. Challenge in the present Writ Petition is to the Order dated 30.6.2016 (Annexure P-4) passed in Case No.16/2016 (Regional) by the Assistant Commissioner, Commercial Tax, Rajnandgaon. 2. Challenge i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubjected to challenge by the State before the Division Bench in the aforesaid Writ Appeals. The Division Bench rejected the bunch of Appeals of the State, affirming the Order passed by the Single Bench. The Division Bench in its Order dated 18.8.2022, in Paragraphs 23 to 26 and 28 29, has held as under: 23. Section 22(1) of the VAT Act, amongst others, provides that where the assessment or re-assessment of a dealer has been made under the VAT Act and for any reason any sale or purchase of goods liable to be taxed under the VAT Act or the Act repealed by this Act during any period, (a) has been under assessed or has escaped assessment, or (b) has been assessed at a lower rate or (c) any wrong deduction has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 assessment, or (d) a rebate of input tax has incorrectly been allowed while making the assessment, or (e) is rendered erroneous and prejudicial to the interest of revenue consequent to or in the light of any judgment or order of any Court or tribunal which has become final, the Commissioner may at any time within a period of five calendar years from the date of order of assessment or from the date of judgment or order of any court or tribunal pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh original assessment proceedings were initiated by issuance of notice on 12-5-2014 and matter was heard time to time by the assessing officer resulting into deemed assessment by virtue of the provisions contained in Section 21(2) of the VAT Act which was reassessable under Section 21(3) of the VAT Act within a period of one calendar year at the instance of the Commissioner on selection being made by him. Thus, the jurisdictional fact and condition precedent for invoking Section 22(1) of the VAT Act i.e. the order of assessment was not in existence on the date of issuing notice for reassessment under Section 22(1) of the VAT Act. Therefore, the learned assessing officer was jurisdiction-less to initiate proceeding for reassessment under Section 22(1) of the VAT Act and the order of reassessment ultimately passed is without jurisdiction and without authority of law and dehors the provisions contained in Section 22(1), as such, it deserves to be quashed. 37. This leads me to the next question as to whether the penalty imposed invoking Section 22(2) of the VAT Act is sustainable. Section 22(2) of the VAT Act provides that the commissioner shall, where the omission leading to ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 notification dated 21.10.2011, the words in two copies after the words form 17-A in Rule 20(2)(d) were inserted. Rule 20(2)(d) provides that after submission of electronic return, form 17-A in two copies be submitted along with copy of the challan of the tax deposited within thirty days in the relevant circle and acknowledgment has to be obtained. Rule 20(2)(e) provides that if the acknowledgment prescribed under clause (d) is not obtained, then it will be deemed that no return has been filed. Argument of Mr. Sharma that the date of acknowledgment of submission of electronic return is the date of the order of deemed assessment, and therefore, it is incorrect to say that there is no date of order of assessment, is misconceived. The acknowledgment obtained for submission of return cannot be construed to mean that the acknowledgment had resulted in an order of assessment. 8. Subsequently, there was another similar matter which came up for consideration before the Division Bench in TAXC No.74/2022 (M/s. Iron Junction Rajbandha Maida ..... X X X X Extracts X X X X X X X X Extracts X X X X
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