9911796707
TMI Blog2024 (5) TMI 1326X X X X Extracts X X X X X X X X Extracts X X X X ..... 2003 read with Section 174 of the Assam Goods and Service Tax Act, 2017, but Section 40 of the Act of 2003 could not have been invoked inasmuch as, the said powers can be invoked only when the dealer have been assessed under Sections 34, 35, 36 and 37 of the Act of 2003. HELD THAT:- No assessment whatsoever was completed by the assessing authority under Sections 34, 35, 36 and 37 of the Act of 2003 - there was no assessment. As such, the very initiation of proceeding under Section 40 of the Act of 2003 is absolutely illegal, without jurisdiction and not tenable in law. The present case is covered by the decision of this Court in Assam Gas Company Ltd Vs. State of Assam 2 Others [ 2024 (5) TMI 1173 - GAUHATI HIGH COURT ] where it was held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 35 of the Assam Value Added Tax Act, 2003 (hereinafter referred to as the Act of 2003) stating that the petitioner s turnover escaped assessment for the year 2010-2011 and accordingly, proposes to assess the petitioner s turnover for the period 2010-2011 to the best of assessing authority judgment under Section 40 of the Act. Thereafter, the assessing authority vide Order dated 29.03.2018 completed the re-assessment under Section 40 of the said Act and came to a finding that the petitioner is liable to pay Rs. 30,34,338.00/-. 4. Accordingly, Notice of Demand was issued on 31.03.2018 by the respondent authorities. Pursuant to the aforesaid Notice of Demand, recovery notices dated 09.08.2018 and 28.09.2018 were also issued from the Cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the end of the month to which the return relates. 11. In the present case, the petitioner is liable to produce the Certificate of Audit by the Chartered Accountant and therefore, the annual return for the assessment year 2010-2011 is to be submitted before 31.10.2011. 12. Details of submission of monthly returns for the year 2010-2011 under the Act of 2003 on different dates as provided in the writ petition, is extracted hereunder for ready reference:- Sl. No. Month Tax Paid (Rs.) Date of Submission 1 April 2010 Nil 29.05.2010 2 May 2010 Nil 17.06.2010 3 June 2010 Nil 09.07.2010 4 July 2010 Nil 11.08.2010 5 August 2010 Nil 16.09.2010 6 September 2010 8,91,520/- 26.10.2010 7 October 2010 33,299/- 18.11.2010 8 November 2010 59,364/- 20.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m or has been wrongly allowed credit therein. iii. Thirdly, if the prescribed authority has such reasons to believe then the prescribed authority has to give reasonable opportunity of being heard, and after making enquiries, proceed to assess to the best of his judgment, the amount of tax due from the dealer in respect of such turnover. 27. It is abundantly clear from the above reading of the said provision that in order to re-assess under Section 40 of the Act, 2003, there has to be firstly an assessment in law. It is only after an assessment is made, the assessing authorities has jurisdiction to exercise powers of re-assessment subject of course to the fulfillment of the other two conditions stipulated therein. The existence of assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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