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TMI Blog2024 (12) TMI 1294X X X X Extracts X X X X X X X X Extracts X X X X ..... al filed by the appellant vide order dated 31.05.2010. Pursuant thereto, even the Revisional Authority had by initiating the suo-moto revision, has dropped the proceedings on 13.06.2012. It is only on 17.07.2014 the Commissioner of Commercial Taxes had initiated the proceedings under Section 64 (2) of the Act and set aside the order of the Appellate Authority and the Revisional Authority, and remanded the matter to the Assessing Officer for re-verifying the taxable contract receipts for the period of April and May of 2007 and to do the re-assessment. It follows that the period taken for disposal by different authorities like Appellate Authority/Revisional Authority/Commissioner of Commercial Taxes in the manner depicted by the appellant, which we have reproduced above, need to be excluded. In other words, as stated above, if 07 years of limitation for assessment or re-assessment need to be computed, the same shall expire on 31.05.2014, but, if 391 days are added to the same, then the period will come to an end just five days before 30.06.2015. So in other words, the re-assessment cannot be carried out after 26.06.2015. In the present case, the re-assessment was done only on 30.05.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsequently, the orders of the Assessing Authority and the demand made thereof, are also set aside. Appeal allowed. - HON'BLE MR JUSTICE V KAMESWAR RAO AND HON'BLE MR JUSTICE S RACHAIAH For the Appellant (By Sri. Surendran Thumboochetty, Advocate). For the Respondents (By Sri. Aditya Vikram Bhat, Aga For R1 R2). ORAL JUDGMENT (PER: HON'BLE MR JUSTICE V KAMESWAR RAO) This intra-court appeal has been filed by the appellant challenging the order of the learned Single Judge in Writ Petition No. 30531/2018, whereby the learned Judge has dismissed the petition by stating in Paragraphs No. 10, 11, 12 as under: - 10. Section 64 (2) of the Act is quoted hereunder for ready reference:- The Commissioner may on his own motion call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by any officer subordinate to him [or the Authority for Clarification and Advance Rulings constituted under Section 60] is erroneous in so far as it is prejudicial to the interest of the revenue, he may if necessary, stay the operation of such order for such order for such period as he deems fit and after giving the person concerned an opportun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d preferred an appeal before the First Appellate Authority under Section 62 of the Act of 2003. The appeal came to be allowed vide order dated 31.05.2010. Pursuant to the said order, the Additional Commissioner of Commercial Taxes ( Revisional Authority in short) exercising power under Section 64 (1) of Act of 2003, initiated suo-moto revisional proceedings and dropped the same in terms of the order dated 13.06.2012. 6. Subsequently, the Respondent No. 2 (the Commissioner of Commercial Taxes) initiated the proceedings under Section 64 (2) of the Act of 2003 and passed an order dated 17.07.2014 setting aside the orders of the Appellate Authority as well as the Revisional Authority, under Section 64 (1) of the Act of 2003 and remanded the case to the Assessing Authority for reverifying the taxable contract receipts for the period of April and May of 2007 and re-do the assessment denovo in the light of the observations made in Suo-moto Remand Order and as per law. It is consequent to the remand made to the Assessing Authority that the impugned re-assessment order and notice of demand dated 30.05.2018 were issued. 7. The case of the appellant before the learned Single Judge was that, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel states that, certain amendments were effected to Section 40 of the Act of 2003 in the year 2017 and the sub-section (3) of Section 40 stood amended with retrospective effect from 01.04.2005. The section relevant for the purpose of issue is re-produced as under: (3) In computing the period of limitation specified for assessment or re-assessment, as the case may be under this Act, the period taken for disposal of any appeal against an assessment or other proceeding by the appellate authority, a tribunal or competent court or any revisional proceeding by the Joint Commissioner or the Additional Commissioner or the Commissioner shall not be taken in to account in computing such period for assessment or reassessment as the case may be 14. Hence, it is his submission that, from the language employed in sub-section of Section 40 of the Act of 2003, it is crystal clear that,- Firstly , in the event of pendency of appeal against an assessment or other proceedings before an Appellate Authority, the Tribunal or Competent Court, the period taken for disposal of such an appeal ought to be deducted while computing the period of limitation for assessment or re-assessment, as the case may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is, whether the learned Single Judge is justified to hold that the limitation for the purpose of re-assessment would start running from the date of passing of the order by the Commissioner under Section 64 (2) of the Act of 2003. 20. There is no dispute that, we are concerned with the tax period between April 2007 to September 2007, and the Assessing Authority has passed an order of re-assessment on 16.01.2010. The Appellate Authority exercising jurisdiction under Section 62 of the Act, had allowed the first appeal filed by the appellant vide order dated 31.05.2010. Pursuant thereto, even the Revisional Authority had by initiating the suo-moto revision, has dropped the proceedings on 13.06.2012. It is only on 17.07.2014 the Commissioner of Commercial Taxes had initiated the proceedings under Section 64 (2) of the Act and set aside the order of the Appellate Authority and the Revisional Authority, and remanded the matter to the Assessing Officer for re-verifying the taxable contract receipts for the period of April and May of 2007 and to do the re-assessment. 21. Learned counsel for the appellant had relied upon the proviso to Section 40, which says that the assessment or re-assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in the case of Jaipuria Brothers Limited (supra). In the said case the facts were, on March 20, 1952, the Sales Tax Officer, Kanpur, issued a notice under Section 21 of the Uttar Pradesh Sales Tax Act 1948, calling upon the appellant/Company to file a return of its turnover for the Assessment Year 1948-49 on the ground that the turnover had escaped assessment. On March 31, 1952, the Sales Tax Officer has made a best judgment assessment and determined the taxable turnover of the appellant/Company at Rs. 50/- for the year 1948-49 and determined the appropriate tax liability. In appeal to the Judge (Appeals) Sales Tax, the order passed by the Sales Tax Officer was set aside by holding that the appellant/company was not a dealer within the meaning of Section 2(c) of the Act. But, the order of the Appellate Authority was set aside by the Judge (Revisions), Sales Tax, by order dated March 28, 1955 and the case was remanded to the Sales Tax Officer for fresh assessment. In the view of the Judge (Revisions), it was necessary to determine the ownership of the goods at the time of sales. The Sales Tax Officer then issued a notice calling upon the appellant/company to produce its Books of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to those cases where the Sales Tax Officer acts on his own initiative and not pursuant to the directions of the Appellate or Revisional Authority. The Hon ble Supreme Court relied upon the judgment of the Privy Council in Commissioner of Income-tax, Bombay Presidency and Aden V. Kemchand, Ramdas (a Firm) in support of its conclusion. In Kemchand s case, the Privy Council held that, as the Income Tax Officer had made the order imposing super tax on the assessee more than 01 year after the earlier demand in respect of income tax, the order was without jurisdiction. It is necessary to state here that during the pendency of the proceedings, Section 21 was extensively amended and the Hon ble Supreme Court noting the amendments subject to no restrictions as to the period within which the order of assessment could be made, had confirmed the order of the High Court. But, in any case, in view of the position of law laid down by the Hon ble Supreme Court, which is applicable to the facts of this case, it must be held that the Assessing Officer in the present case could not have held the assessment proceedings beyond the expiry of seven years after excluding the period during which the proce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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