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TMI Blog2023 (9) TMI 1365X X X X Extracts X X X X X X X X Extracts X X X X ..... by the authority issuing the notice and it is open to the petitioner to submit its objection to the proposal including the plea of limitation. Limitation is a mixed question of fact and law which is yet another reason as to why this Court is not inclined to entertain the writ petition at the stage of show cause notice. The writ petitions are disposed of with liberty to the petitioner to file their objections within a period of 6 weeks from the date of receipt of a copy of this order, if any such objections are filed, the Respondent shall consider the same after providing the petitioner reasonable opportunity of personal hearing. Petition disposed off. - Honourable Mr.Justice Mohammed Shaffiq For the Petitioner in all petitions : Mr.Ramnath Prabhu for Mr.Y.Prakash For the Respondent in all petitions : Mr.B.Ramaswamy, Additional Government Pleader (Pondicherry) COMMON ORDER This batch of writ petitions were filed challenging the following preassessment notices on the premise that the impugned notices are barred by limitation in terms of Rule 5 (6) of the Central Sales Tax (Puducherry) Rules 1967 (hereinafter referred to as CST (P) Rules ). The Followin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such inputs only in excess of the rate prescribed under Section 8(1) of the CST Act, whereas, the petitioner had claimed the entire tax paid on its purchases as input tax credit. Thereafter, summon dated 14.09.2017 for the assessment years 2010-11, 2012-13 and 2013-14 and on 19.08.2013 for the assessment year 2011-12 was issued calling upon the petitioner to produce the various documents such as purchase and sales invoices, ITC claimed details along with invoice, Bank statement, Form CC Income Tax statement / declarations forms C/H/F/I for Concession availed / payment received details. 2.3. After more than 7 years from the date of issuance of the first notice and close to 3 years after the issuance of summon calling for production of documents and books of accounts on 14.09.2017 and 19.08.2013 the impugned pre-assessment notices dated 07.07.2020 and 19.07.2021 for the assessment years 2010-11, 2011-12, 2012-13 and 2013- 14 respectively was issued wherein it was proposed to levy tax on turn overs not supported by declaration forms at higher rates in terms of Section 8 (2) of the CST Act, rejecting the claim of concessional rate of 2% and also proposing to disallow the claim of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment by way of single order, the tax or taxes payable under the Act for the preceding year or for the year to which the return submitted relates. Thus, the impugned preassessment notice issued after more than 7 years from the first notice is barred by limitation. b. That limitation relates to jurisdiction. Proceedings barred by limitation are a nullity, thereby, warranting interference under Article 226 of the Constitution of India. c. Thus the impugned notice invoking Section 9 of the CST Act r/w Section 24 of the PVAT Act is grossly misconceived inasmuch as the limitation in respect of the CST Act would be governed by Central Sales Tax (Pondicherry) Rules, 1967 framed in exercise of powers conferred under sub-Sections (3), (4) and (5) of Section 13 of the CST Act and in particular Rule 5(5) and 5(6) of the Central Sales Tax (Pondicherry) Rules, 1967. 4. Case of the Respondents: a. It was submitted by the learned counsel for the respondents that the writ petitions itself ought not to be entertained as it is pre-mature and it is always open to the petitioner to raise the issue of limitation and jurisdiction and all other aspects before the Assessing Authority in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is of the view that whether the notices are barred by limitation or not can be adjudicated by the authority issuing the notice and it is open to the petitioner to submit its objection to the proposal including the plea of limitation. In this regard, it may be relevant to refer to the following judgments of the Hon'ble Supreme Court; a) Malladi Drugs Pharma Ltd. v. Union of India , (2020) 12 SCC 808 : 2004 SCC OnLine SC 358, wherein it was held as under: 3. The High Court's order was passed way back in 1997. Neither party knows whether the Department has proceeded further and/or whether any order has been passed pursuant to the show-cause notice. Even otherwise, in our view, the High Court was absolutely right in dismissing the writ petition against a mere show-cause notice. We see no reason to interfere. The appeals stand dismissed. There will be no order as to costs. b) Special Director v. Mohd. Ghulam Ghouse , reported in (2004) 3 SCC 440 , wherein it was held as under: 3. According to the appellants, the writ petition is thoroughly misconceived as it challenges a show-cause notice and in any event the final relief as sought for by R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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