TMI Blog2013 (1) TMI 697X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment cannot be challenged on the said ground. We therefore hold that the first respondent had the jurisdiction to pass the impugned orders of assessment dated October 17, 2012 for the assessment years 2006-07 and 2007-08 and the said orders are not barred by limitation. However, on the merits we do not propose to express any opinion. It is open to the petitioner to challenge the impugned assessment orders dated October 17, 2012 for the assessment years 2006-07 and 2007-08 by way of appeal before the competent appellate authority under the Act. - Writ Petition Nos. 34610, 34619 of 2012 - - - Dated:- 2-1-2013 - GODA RAGHURAM AND RAMACHANDRA RAO M.S., JJ. For the Appellant : G. Narendra Chetty For the Respondents : B. Venkatadri, Special Government Pleader for Commercial Taxes, ORDER:- The order of the court was made by M.S. RAMACHANDRA RAO J.- Since common issues of law and fact arise in these writ petitions, they are being disposed of together. Heard Sri S. Narendra Chetty, counsel for the petitioner and Sri Venkatadri, Special Government Pleader for Commercial Taxes in both cases. With the consent of both sides, the writ petitions are bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruary 2, 2010. The Appellate Deputy Commissioner (CT), Secunderabad Division, on June 13, 2011 vide a common order in Appeal Nos. S/130 and 131/09-10/V allowed the appeals on the ground of lack jurisdiction following the judgment of this court in Sri Balaji Flour Mills v. Commercial Tax Officer II, Chittoor [2011] 40 VST 150 (AP); 52 APSTJ 85. In the said case, it was held that the authorization to audit under section 43 read with rule 59(1)(7) by itself does not enable the audit officer to undertake assessment. Following the said decision, the Appellate Deputy Commissioner held that the impugned order dated August 18, 2009 of the second respondent is without jurisdiction and directed the second respondent to make necessary correspondence with the Deputy Commissioner concerned for taking appropriate steps. He also returned the material received from the regular assessing authority intact. Thereafter, as no assessment was made within the period of limitation of four years from the date of filing of the return (as prescribed by section 21(3) of the Act), on July 15, 2012, the petitioner applied for refund of the 50 per cent of the disputed tax with interest (which had been paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment made was set aside by the appellate authority as being without jurisdiction, what necessarily follows is that a fresh assessment has to be necessarily framed and for framing a fresh assessment, the respondents were bound by the limitation laid down in section 21 of the Act. He also contended that the limitation in section 21 cannot be bypassed by the respondents by relying upon section 37 of the Act which specifically covers only the situations laid down therein. The Government Pleader, however, contended that the present orders dated October 17, 2012 are pursuant to proceedings initiated consequent to the orders of the Appellate Deputy Commissioner only; that the order of the Appellate Deputy Commissioner reveals that while setting aside the original assessment order, on the question of jurisdiction, he clearly directed the assessing authority to correspond with the Deputy Commissioner concerned for taking appropriate steps; that the Deputy Commissioner (CT), Secunderabad Division on coming to know of the order of the Appellate Deputy Commissioner, authorized the first respondent to assess the petitioner for 2006-07 and 2007-08, respectively; that the present proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of law having a direct bearing on the assessment in question, the period during which the stay order was in force or such appeal or proceedings was pending shall be excluded in computing the period of four years or six years as the case may be for the purpose of making the assessment. (8) Where an assessment made has been set aside by any court, the period between the date of such assessment and the date on which it has been set aside shall be excluded in computing the period of four years or six years as the case may be, for making any fresh assessment. Section 37 of the Act states as follows: 37. Limitation in respect of certain assessments or reassessments ordered.-Notwithstanding anything contained in sections 21 and 32 where an assessment, reassessment, rectification in or revision of an assessment is made in respect of a dealer or any person, in pursuance or in consequence of or to give effect to any finding or direction contained in an order under sections 31, 32, 33, 34 and 35 or in an order of any court in a proceeding, otherwise than by way of appeal or revision; such assessment, reassessment, rectification in or revision, of an assessment shall be made withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act for making assessment) from the due date of return or the date of filing of the return, whichever is later or are within limitation prescribed under section 37 of the Act. Section 21(3) prescribes the period of limitation of four years from due date of return or within four years of the date of filing of the returns, whichever is later, for making assessment by the competent authority. In the present case, originally returns were filed for both 2006-07 and 2007-08 and orders of assessment were passed on August 18, 2009. The orders of assessment dated August 18, 2009 were set aside by the Appellate Deputy Commissioner in an appeal (under section 33 of the Act preferred to him by the petitioner) on June 13, 2011 on the ground that the second respondent had passed the said orders without jurisdiction. Section 37 provides that notwithstanding anything contained in section 21, where an assessment is made in respect of a dealer in pursuance or in consequence of or to give effect to a direction contained in an order under section 33, such assessment shall be made within three years from the date of receipt of such order by the prescribed authority. The fact that the Appellate Depu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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