TMI Blog2013 (4) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.2002 ( in respect of some other issues ). The Supreme Court held that, the period of limitation provided for under sub-section (2) of section 263 of the Act would begin to run from the date of orders of the assessment and not from the order of re-assessment dated 28.3.2002 and the revisional jurisdiction, invoked by the Commissioner of Income Tax was beyond the period of two years ( at that time ) from the end of the financial year in which the order sought to be revised was passed, and was wholly without jurisdiction and a nullity. We respectfully follow the above two decisions and hold that the very proposal of the respondent are wholly without jurisdiction and barred by limitation prescribed under sub- section (3) of Section 20 of the GST Act as the respondent clearly intended to re-assess the appellant for the assessment year 2000-01, thereby interfering with the order of assessment dated 15.3.2003 of the Deputy Commissioner (CT), Abids while purporting to revise the order dated 28.2.2007 of the Additional Commissioner (CT) Legal, A.P. - Accordingly, the Special Appeal is allowed. - SPL. A No.2 of 2010 - - - Dated:- 13-2-2013 - Goda Raghuram And M. S. Rama Chandra Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsignees were not existing or were found not registered on the rolls of the Department in the respective States ; though the names of some of the consignees tally with registration certificate numbers, the said consignees were not traceable at the addresses furnished by the assessee and the whereabouts of the said dealers were not known ; that the assessing authorities of the said dealers certified that the said dealers neither filed returns nor paid any taxes to the Department; in some cases although the consignees and their registration certificate numbers given by the assessee are tallying, they were found to be doing business in some other commodities other than vegetable oils. The appellant filed objections to the show-cause notice and also filed 509 F forms covering the disputed turnover of ₹ 39,89,47,477. By order dated March 15, 2003, the Deputy Commissioner (CT), Abids Division, accepted the .F forms filed by the appellant and granted exemption on the turnover .relating to the transaction claimed ,as consignment sales and finally assessed the appellant to a net turnover of ₹ 1,77,74,427 under section 14 of the GST Act read with section 9(2) of the CST Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent sales without taking into consideration findings of the enquiry teams ; that fresh investigation was done by the Department in 2007-08 and 2008-09 to verify the correctness of F forms submitted by the appellant in other States and the alleged consignment sales falling in the following four categories comprising ₹ 24.38 crores are liable to be taxed at 10 per cent:- i) Type A - 42 dealers - Rs.10.37 Crores - Non-existing dealers or unregistered dealers or dealers who denied the transactions. ii) Type B - 2 dealers - Rs.92,93,808/- variation between actual value and F form value iii) Type C - 21 dealers - Rs.3.52 Crores - F forms not genuine. iv) Type D - 82 Forms - Rs.9.55 Crores - F forms defective. The appellant filed objections dated June 23, 2009 to the show-cause notice dated May 11, 2009 proposing the second revision, inter alia, contending that:- (a) revisional power was already exercised once by the Additional Commissioner who sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by law; that the proposal in the show-cause notice dated May 11, 2009 and order of the respondent seeks to disturb the order of the Deputy Commissioner (CT), Abids dated March 15, 2003 while purporting to revise the first revisional order of the Additional Commissioner dated February 28, 2007 ; that the order of the respondent is barred by time since it is beyond the period of four years prescribed in the statute as the respondent, under the guise of revising the order of the Additional Commissioner dated February 28, 2007, virtually revised the order of the Deputy Commissioner (CT), Abids, dated March 15, 2003 ; in any event, even on the merits, the order of the respondent is erroneous and unsustainable. The learned Special Government Pleader, however, contended that the order of the respondent is valid in law; that the respondent had jurisdiction to undertake revision under section 20 of the GST Act read with section 9(2) of the CST Act; that the respondent had only revised the order of the Additional Commissioner dated February 28, 2007 and not order of the Deputy Commissioner (CT), Abids, dated March 15, 2003 ; exercise of power by the respondent is not barred by limitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded by authorities, officers or persons subordinate to them. (2A) The power under sub-section (1) or sub-section (2) shall not be exercised by the authority specified therein in respect of any issue or question, which is the subject-matter of an appeal before, or which was decided an appeal by the Appellate Tribunal under section 21. (3) In relation to an order of assessment passed under this Act, the powers conferred by sub-sections (1) and (2) shall be exercisable only within such period not exceeding four years from the date on which the order was served on the dealer, as may be prescribed. No doubt, clause (1) of section 20 authorizes the respondent to revise revisional order passed by any subordinate officer under sub-section (2) of section 20. The question to be considered in this case is whether the respondent is merely revising the prder dated February 28, 2007 passed by the Additional Commissioner (CT), Legal dated February 28, 2007 or he is, in fact, revising order dated March 15, 2003, of the Deputy Commissioner (CT), Abids. When the Additional Commissioner (CT), Legal, sought to revise the order of the Deputy Commissioner (CT), Abids, un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upport of its claim for exemption of consignment sales under section 6A of the CST Act. It is therefore clear that he is actually doing reassessment, i.e., deciding the correctness of the order of the Deputy Commissioner (CT), Abids, dated March 15, 2003 and not a mere revision of the order of the Additional Commissioner of Commercial Taxes (CT), Legal dated February 28, 2007. The fact that the respondent had issued a notice dated November 11, 2009 to the appellant seeking fresh information and production of records such as copies of their accounts in the ledgers of the alleged consignment agents in other States, copies of sale bills raised by the said agents for the stock of vegetable Oil received by them from the appellant, copies of assessment orders of the alleged agents under local sales tax statutes in other States for the year 2000-01 showing the turnovers relating to the stocks received from the appellant, etc., clearly indicates that the respondent was undertaking a reassessment of the appellant's assessment for the year 2000-01 which is impermissible in law. Paras 20 to 23 of the order of the respondent dated July 13, 2010, confirms that he is doing a reassessment onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner of Income-tax v. Alagendran Finance Ltd. (2007) 293:-ITR 1 (SC), the Commissioner of income-tax, while exercising revisional powers under section 263 of the Income-tax Act, 1961, reopened on March 29, 2004, the orders of assessment dated February 27, 1997, May 12,1997 and March 30, 1998 for assessment years 1994-95, 1995-96, 1996-97 only in relation to the issue of lease equalization fund which was not subject of the reassessment proceedings dated March 28, 2002 (in respect of some other issues). The Supreme Court held that, in respect of the issue of lease equalization fund , the period of limitation provided for under sub-section (2) of section 263 of the Act would begin to run from the date of orders of the assessment and not from the order of reassessment dated March 28, 2002 and the revisional jurisdiction, invoked by the Commissioner of Income-tax was beyond the period of two years (at that time) from the end of the financial year in which the order sought to be revised was passed, and was wholly without jurisdiction and a nullity. We respectfully follow the above two decisions and hold that the very : proposal of the respondent dated May 11, 2009 and the conse ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
