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TMI Blog2024 (8) TMI 842X X X X Extracts X X X X X X X X Extracts X X X X ..... time limit for completion for assessment has been indicated and after expiry of the said period no assessment can be made. Reference is made to the decision of the Apex Court in the case of Vs. Regional Assistant Commissioner Of Sales Tax Nagar [ 1963 (8) TMI 2 - SUPREME COURT] , wherein the Apex Court held that unless return is filed within the time limit, there cannot be an assessment. Section 39 of the said Act, 2003 provides that no assessment shall be completed after the expiry of five years from the end of the year to which the assessment relates and as evident from the above, in the present case, no assessment under section 34, 35, 36 or 37 of the Act, 2003 was completed by the assessing authorities. Therefore, assessment for the year 2014 2015 ought to have been completed within 5 years from the end of the year in respect of which the assessment relates. In terms of Section 39 of the said Act, 2003, assessment for the assessment year 2014 2015 got barred by limitation on 31.3.2020 - Since, the time limit for completion of assessment as in terms of Section 39 of the Act expired on 31.03.2020, it appears that the assessing authority did not complete assessment within the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have reason to believe that the turnover of the petitioner s business assessable to tax for the assessment period from 2014 2015 has escaped assessment as the petitioner has failed to deposit VAT on transmission charge amounting to Rs. 1,00,95,562/- as the same was clearly part of the sale price and therefore proposes to re-assess the petitioner for the aforesaid period under Section 40 of the Assam Value Added Tax Act, 2003 read with Section 9 of the Central Sales Tax Act, 1956 and Section 174 of the Assam Goods and Service Tax Act, 2017. 4. The petitioner was given an opportunity to show-cause by appearing person or through its representative on or before 17.07.2021. 5. Thereafter the assessing authorities by order dated 05.03.2022 re-assessed the petitioner under Section 40 of the Act, 2003 and came to a finding that the petitioner is liable to pay Rs.1,93,84,631/- as penalty. 6. Accordingly, notice of demand was issued on 05.03.2022 by the respondent No.3 to the petitioner for making payment of Rs.1,93,84,631/-. The aforesaid re-assessment order and notice of demand are challenged before this Court. 7. Dr. A. Saraf, learned Senior Counsel for the petitioner submits that though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifferent periods may be prescribed for different classes of dealers for the purpose of filing tax return. (2) Every registered dealer and every dealer liable to pay tax shall furnish, in addition to the tax return, if any, furnished under sub-section (1), a correct and complete annual return in the prescribed form within such time as may be prescribed. (3) If the Prescribed Authority has reason to believe that the turnover of sales or the turnover of purchases of any dealer has exceeded the taxable limit as specified in sub-section (6) of section 7, so as to render him liable to pay tax under this Act for any year or part thereof, he may, by notice served in the prescribed manner, require such dealer to furnish tax return under sub-section (1) and an annual return under sub-section (2) as if he were a registered dealer. (4) If any dealer having furnished a tax return or an annual return under this section, discovers any omission or any other error in the return so filed, he may without prejudice to the charge of any interest, furnish revised tax return or revised annual return, as the case may be, in the prescribed manner and within the prescribed time. (5) Every dealer required to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Act for which proceedings for prosecution has been initiated, the limitation as specified in this subsection shall not apply. iv) Section 40 of the ACT, 2003 provides that 40. Turnover escaping assessment: (1) Where after a dealer is assessed under section 34, 35, 36 or 37 of this Act for any year or part thereof, the Prescribed Authority has reason to believe that the whole or any part of the turnover of the dealer in respect of any period has,- (a) escaped assessment; or (b) been under assessed; or (c) been assessed at a rate lower than the rate at which it is assessable; or (d) been wrongly allowed any deduction therefrom; or (e) been wrongly allowed any credit therein. The Prescribed Authority may, after giving the dealer a reasonable opportunity of being heard and after making such enquiries as he considers necessary, proceed to assess to the best of his judgment, the amount of tax due from the dealer in respect of such turnover, and the provisions of this Act shall, so far as may be, apply accordingly. (2) No order of assessment and reassessment shall be made under subsection (1) after the expiry of eight years from the end of the year in respect of which or part of which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (1) of Section 10, the challans for payment of tax received by a bonded warehouse from a retail licence holder or by a excise warehouse from a retail vendor, shall also form part of the full amount of tax payable on the taxable turnover of such bond or warehouse for the month to which the tax return relates. (4) If the amount paid by a dealer along with the tax return under sub-rule (1) or (2) or (2A) or (2B), is less than the amount of tax payable by him, the Prescribed Authority shall serve a notice of demand and the dealer shall pay the sum demanded in the said notice within the time and in manner specified in the notice. Amendment : In between the existing numeral (2) and the punctuation mark , , the words and bracket or (2A) or (2B) have been inserted vide notification No. FTX.29/2003/25 dated 4-11-2006 w.e.f. 14-11- 2006. (5)(a) Every dealer as mentioned in sub-rule (1) and sub-rule (2) in addition to the tax returns furnished, shall submit an annual return in Form-14 within two months after the close of the year to which the return relates; (5)(b) Every dealer as mentioned in sub-rule (2A) and sub-rule (2B) in addition to the tax returns or statements of quantity of goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... already been served on the dealer. (9) Omitted. Amendment: Sub-rule (9) has been omitted vide notification No. FTX. 29/2003/25 dated 4-11-2006 w.e.f. 14-11-2006. Prior to its omission, it read as under: (9) A dealer, opting for composition scheme under Section 20, shall be liable to pay tax quarterly. Such dealer shall make the payment by challan into a Designated Bank within twenty one days of the succeeding month from the date of expiry of each quarter. 11. Section 29 of the Act, 2003 provides that every dealer has to furnish periodical returns within the prescribed time. Rule 17 of the said Rules, 2005 provides that such return for each month has to be filed within the next 21 days of the succeeding month. 12. Section 35 of the said Act, 2003 deals with self-assessment and sub section 2 of the said Section provides that the assessment shall be deemed to have been completed if the dealer has filed all the tax returns and annual returns or revised returns in the prescribed manner and within the prescribed time and has paid the tax payable according to such returns or revised returns and also interest payable, if any. In the present case, monthly returns were required to be filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment can be made. 16. Reference is made to the decision of the Apex Court in the case of Shyam Das Vs. Regional Assistant Commissioner Of Sales Tax Nagar reported in 1964 vol. 4 SCR at page 436 , wherein the Apex Court held that unless return is filed within the time limit, there cannot be an assessment. 17. It is submitted by the learned Counsel appearing for the assessing authorities that the self-assessment under Section 35 of the said Act, 2003 was deemed to have been completed as the petitioner filed audited balance sheet and form 23 and therefore, the proceedings under Section 40 was initiated. As stated earlier, the petitioner having not filed the tax returns and annual returns or revised returns within the prescribed time stipulated under Rule 17 of the said Rules, 2005, no self-assessment can be made under law. Therefore, the assessing authorities could not have deemed self-assessment under Section 35 to have been completed. As such, the said submission of the Ld. Counsel appearing for the assessing authorities is totally fallacious. 18. Section 34, 36 and Section 37 of the said Act, 2003 admittedly is not applicable in the present case. 19. Section 39 of the said Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndantly 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 reassessment subject off course to the fulfillment of the other two conditions stipulated therein. The existence of assessment is a condition precedent for making a reassessment under Section 40 of the Act, 2003 and if such condition precedent exist, the assessing authorities had no jurisdiction to make the reassessment. As such, without assessment under section 34, 35, 36 or 37 of the Act, 2003, the respondent authorities could not have resorted to the provisions of the reassessment stipulated under Section 40 of the said Act. 23. Reference is made in this regard to the decision of the Apex Court in the case of Ghanshyamdas Vs Regional Assistant Commissioner of Sales Tax, Nagpur and others reported in (1964) 51 ITR 557(SC) and the decision of the Division Bench of this Court in the case of Radheshayam Goyal Sons Vs State of Assam Ors. in W.P(C) No. 4652/2015. 24. In the present case, there was no assessment under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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