Home Case Index All Cases VAT and Sales Tax VAT and Sales Tax + HC VAT and Sales Tax - 2011 (12) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2011 (12) TMI 495 - HC - VAT and Sales TaxValidity of audit assessment order passed by DCST under Rule 12(3) of the Central Sales Tax (Orissa) Rules, 1957 – Applicability of period of limitation - Whether the assessing authority is empowered to utilize any adverse report other than the audit visit report against a dealer while making audit assessment under rule 12(3) of the CST(O) Rules read with section 42 of the OVAT Act - Held that:- The audit assessment and assessment of escaped turnover cover separate and distinct field for the purpose of assessment - while in the case of audit assessment, the maximum period of limitation is one year, in the case of assessment of turnover escaping assessment, the period of limitation is five years - Both the assessments have to be completed within the respective period of limitation as provided under the statute - while making audit assessment as provided under rule 12(3), the assessing authority has no power/authority to utilize any material against the dealer other than the materials available in the audit report - the period of five years provided under the statute for completing assessment of escaped turnover cannot be restricted to one year as provided in case of audit assessment - when the statute requires to do certain thing in certain way, the thing must be done in that way or not at all - other methods or mode of performance are impliedly and necessarily forbidden - the settled legal proposition is based on a legal maxim "expression unius est exclusio alterius", meaning thereby that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner and following other course is not permissible - the assessing authority is not justified in utilizing the fraud report dated May 2, 2011 against the petitioner-dealer while making audit assessment on the basis of audit visit report dated September 30, 2010. Violation of principles of natural justice – Held that:- Giving eight days’ time to explain the allegations raised against the dealer-petitioner in the report dated May 2, 2011 which is in 20 volumes covering more than 4,000 pages cannot be said that reasonable opportunity of being heard has been afforded to the petitioner before passing the impugned order of assessment. Whether the assessing authority is justified in passing assessment order by generalizing the entire claim of stock transfer on the strength of findings arrived at on scrutinizing some transactions of stock transfer – Held that:- While examining the transaction of stock transfer, the assessing authority is required to examine each and every transaction to find out the genuineness of the claim - the onus of proving always lies upon the taxing authority to show that a particular sale or sales is/are exigible to tax under the Act – the order is set aside with a direction to the assessing authority to pass the audit assessment order afresh exclusively on the basis of audit visit report – Decided in favour of petitioner.
|