9911796707
TMI Blog2008 (10) TMI 609X X X X Extracts X X X X X X X X Extracts X X X X ..... A-9, is beyond the prescribed period of limitation of two years, given in section 21A(2) of the Act and therefore without jurisdiction and, hence liable to be quashed? (iii) Whether, on the facts and circumstances of the case, the learned Tribunal was bound to adjudicate all the issues raised in original appeal which were not decided by the Tribunal while passing the original order? (iv) Whether the order passed by the Assessing Authority is barred by limitation as prescribed under section 11(3) as amended by notification dated March 3, 1998? (v) Whether, on the facts and circumstances of the case, the original order of assessment was time-barred even under the unamended ection 11(4) of the PGST Act, as no notice of best judgment assessment was ever given to the assessee before passing any order?" The appellant is a dealer registered under the provisions of the 1948 Act and 2005 Act and filed four quarterly returns for the assessment year 199495 and paid tax according to the returns. The assessing authority issued notice dated October 24, 1997 under section 11(2) of the 1948 Act and made assessment creating additional demand vide orders dated April 29, 2004. It was observed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the GTO already deposited by the appellant shall be treated as final and the learned counsel for the appellant also agrees that he shall not claim any refund at any time." The Revenue filed rectification application under section 21A(2) of the 1948 Act on November 27, 2006. It was submitted that the Act was amended on March 3, 1998 prescribing the period of limitation but the same could not apply in the case of assessment in question which was prior to the amendment. The amendment had to be treated as prospective in absence of the same being expressly or by necessary implication being retrospective. The Revenue also filed identical application on April 18, 2007. First application was dismissed as not pressed on August 27, 2007 on the ground that another application had been filed and the second application was allowed vide order dated September 6, 2007 which has been impugned in the present writ petition. Therein, it was observed that since prior to amendment, no period was prescribed for framing assessment under section 11(4) and period prescribed was under section 11(4) only to proceed to assess, the assessment was not barred by limitation. The Assessing Authority had already p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o period of limitation having been prescribed, the impugned order of assessment passed on April 29, 2004 or other dates were valid orders of assessment. In respect of years of assessment preceding the amendment, the amendment could not be looked into. The learned counsel for the State referred to letter dated August 22, 2002 written by the assessee stating that the company was sick company and reference was pending before the BIFR. The company has sought various concessions including deferment of sales tax liability. It was submitted that limitation had to commence from the date of the said letter. Before we proceed to deal with the questions proposed on behalf of the appellant, it will be appropriate to refer to the provisions of section 11 of the Act before and after the amendment: Before amendment After amendment "11. Assessment of tax. - (1) If the Assessing Authority is satisfied without requiring the presence of dealer or the production by him of any evidence that the returns furnished in respect of any period are correct and complete, he shall assess the amount of tax due from the dealer on the basis of such returns. 11. Assessment of tax. - (1) If the Assessing Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice issued under sub-section (2), the Assessing Authority shall, within a period of three years from the first date prescribed for furnishing the last return in respect of such period, pass an order of assessment to the best of his judgment. (5) If a dealer does not furnish returns in respect of any period by the prescribed date, the Assessing Authority shall, within five years after the expiry of such period, after giving the dealer a reasonable opportunity of being heard, proceed to assess to the best of his judgment, the amount of tax, if any, due from the dealer. (5) If a dealer does not furnish returns in respect of any period by the last date prescribed, the Assessing Authority shall, within a period of five years from the last date prescribed for furnishing the return in respect of such period and after giving the dealer a reasonable opportunity of being heard, pass an order of assessment to the best of his judgment. (6) If upon information which has come into his possession, the Assessing Authority is satisfied that any dealer has been liable to pay tax under this Act in respect of any period but has failed to apply for registration, the Assessing Authority shall, wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e date of such payment or allow payment by instalments against an adequate security or bank guarantee. (8) If the tax assessed under this Act or any instalment thereof is not paid by any dealer within the time specified thereof in the notice of assessment or in the order permitting payment in instalments, the Commissioner or any other person appointed to assist him under sub-section (1) of section 3 may, after giving such dealer an opportunity of being heard, imposed on him a penalty not exceeding in amount the sum due from him. (8) If the tax assessed under this Act or any instalment thereof is not paid by any dealer within the time specified thereof in the notice of assessment or in the order permitting payment in instalments, the Commissioner or any other person appointed to assist him under sub-section (1) of section 3 may, after giving such dealer an opportunity of being heard, impose on him a penalty not exceeding in amount the sum due from him. (9) Any assessment made under this section shall be without prejudice to any penalty imposed under this Act. (9) Any assessment made under this section shall be without prejudice to any penalty imposed under this Act. &nb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Reliance has been placed on judgments in P.S. Jain Motor Company (PB.) Pvt. Ltd. v. State of Punjab [1992] 84 STC 177 (P&H), Mysore Cements Limited v. Deputy Commissioner of Commercial Taxes (Assessment-V), City Division-II [1994] 93 STC 464 (Karn) and Jagatjit Distilling and Allied Industries Limited v. Assessing Authority, Kapurthala [1978] 42 STC 233 (P&H). It was also submitted that it had been held by the honourable Supreme Court in State of Punjab v. Murlidhar Mahabir Parshad [1968] 21 STC 29 that under the 1948 Act, once notice for assessment had been served, the assessment has to be treated to be within limitation. The Tribunal in its order dated July 8, 2005 having simply referred to the amended provisions, committed an error apparent on the face of record by observing that the assessment was barred by limitation. The Tribunal had not gone into the question whether the new amendment was applicable or not. In the order of rectification, it was rightly held that new amendment did not apply. Reliance has also been placed on judgments of this court in Emkay Industries [2005] 139 STC 57 holding that the amendment was applicable if notice for assessment was after the coming int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ.' 13Para 10 at page 755 of [2007] 10 VST. . . . . In our view rectification of an order does not mean obliteration of the order originally passed and its substitution by a new order. What the Revenue intends to do in the present case is precisely the substitution of the order which according to us is not permissible under the provisions of section 22 and, therefore, the High Court was not justified in holding that there was mistake apparent on the face of the record. In order to bring an application under section 22, the mistake must be 'apparent' from the record. Section 22 does not enable an order to be reversed by revision or by review, but permits only some error which is apparent on the face of the record to be corrected. Where an error is far from self-evident, it ceases to be an apparent error. It is, no doubt, true that a mistake capable of being rectified under section 22 is not confined to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsisting on that date. But a statute may, expressly or impliedly by retrospectively extending limitation, revive a barred claim . . ." In view of the above settled legal position, we are of the view that the assessment was not barred by limitation. In Murlidhar Mahabir Parshad [1968] 21 STC 29, the honourable Supreme Court held that if notice of assessment had already been given, the assessment was to be treated to be within limitation. In Emkay Industries [2005] 139 STC 57, this court held that if notice of assessment was after the date of coming into force of the amendment, the period of limitation will apply and not otherwise. In the present case, notice of assessment was prior to the enforcement of amending law. The order of the Tribunal dated July 8, 2005, thus, suffered from error apparent on the face of record, which could be rectified. Accordingly, question No. (i) is decided against the assessee and in favour of the Revenue. Re: Question No. (ii) The learned counsel for the assessee submitted that the order of rectification was passed on September 6, 2007, while original order of the Tribunal was dated July 8, 2005 and thus, order of rectification was beyond limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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