TMI Blog2005 (7) TMI 641X X X X Extracts X X X X X X X X Extracts X X X X ..... 004 and had followed up by issue of a proposition notice for provisional assessment on March 26, 2004 and the proceedings culminating in the provisional assessment order dated December 13, 2004. The only ground entertained for examination of this writ petition is the challenge to the provisional assessment order on the premise that the respondent No. 1 lacked jurisdiction to pass the said provisional assessment order in terms of sub-section (6) of section 28 of the Act for the reason that the provisional assessment order itself has come to be passed beyond the period of 180 days within which period the officer should have passed the order in terms of the fourth proviso to sub-section (6) of section 28 of the Act. Notices had been issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of the fourth proviso to section 28(6) of the Act, lacked jurisdiction to pass an order of the nature that he has passed after the expiry of a period of 180 days from the date of the seizure, this writ petition is entertained and taken up for consideration. Submission of Smt. Vani, learned counsel for the petitioner is straight and simple. Learned counsel points out to fourth proviso to section 28(6) of the Act which reads as under: Provided also that no provisional assessment under this section shall be made in the case of any dealer after one hundred and eighty days from the date of seizure of accounts, registers, records and documents under sub-section (3). Learned counsel for the petitioner points out that while the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s is that the petition has become infructuous, inasmuch as, the petitioner had preferred an appeal to the Joint Commissioner of Commercial Taxes and the Appellate Authority has dismissed/allowed the appeal in part, the order having merged with the appellate order does not survive independently and therefore the writ petition should be dismissed as having become infructuous. May be so in the normal course of statutory remedies, the petitioner might have pursued the appellate remedies, but the order being in the nature of provisional assessment order and the challenge being on the ground of want of jurisdiction or authority to pass such an order itself and that having been examined, it matters little as to whether the order got merged with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he statute is one for initiation of reopening proceedings within a particular time, what matters is if the proceedings had been initiated. Even otherwise, in the case of Jagmohandas [1970] 25 STC 74, period of limitation did not operate as the assessing officer was exercising power or authority under the liberty reserved by the High Court when remanding the matter by setting aside the assessment order for violating the principles of natural justice, etc. Therefore, the ratio of this case has no application to the present case. The second decision relied upon by the learned Government advocate is in the case of State of Punjab v. Tara Chand Lajpat Rai [1967] 19 STC 493 (SC). Here again, an assessment order which was sought to be challenge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Premier Traders v. A.C.C.T., Investigation 3, Bangalore [2008] 11 VST 139; [2004] 56 Kar LJ 407. I find that the decision was rendered in the context of provisions as it existed before the addition of the fourth proviso to section 28(6) of the Act and the decision has no bearing to the facts and circumstances of the present case. Both on facts and law, the decision is not applicable. The other argument is that the proviso cannot be pressed into service as it has been introduced into the statute book after the date of seizure and it can operate prospectively, cannot be accepted for the reason that on the day the order was passed, the provisio was operative and has to be applied. The provisio being one to ensure expeditious conclusion, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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