TMI Blog2015 (4) TMI 494X X X X Extracts X X X X X X X X Extracts X X X X ..... other types of assessment provided under the said Act are impliedly excluded. If the Legislature in its wisdom has taken away assessment as contemplated under Section 43 from Section 42 for the purpose of making audit assessment, after completion of any other assessment under the OVAT Act, Section 43 cannot be read into Section 42 by the State. Section 41(2) of the OVAT Act read with Rule 41(2) of the OVAT Rules empowers the Commissioner to direct audit on any specific issue or issues relating to any dealer or class or classes of dealers on being referred to by subordinate officers to check tax evasion. - Therefore, in case of an assessee, if the Revenue authorities decide not to exercise the power conferred under Section 41(2) of the OVAT Act read with Rule 41(2) of the OVAT Rules to make audit assessment for particular tax period and choose to proceed to complete the assessment under Section 43 of the OAVT Act, it is thereafter not permissible to assess the petitioner under Section 42 of the OVAT Act. Audit assessment under Section 42 cannot be made after completion of the assessment of escaped turnover under Section 43 of the OVAT Act read with Rule 50 of the OVAT Rules f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the purpose of assessment under the OVAT Act. The Assessing Authority is vested with the jurisdiction/power to make assessment either under Section 42 or Section 43 of the OVAT Act, as the case may be. There is no legal bar to make assessment under Section 42 of the OVAT Act after completion of assessment under Section 43 of the said Act for the self-same period(s). 4. On rival contentions of the parties, the only question that falls for consideration by this Court is as to whether the Taxing authority has jurisdiction to make audit assessment under Section 42 of the OVAT Act after completion of the assessment under Section 43 of the said Act for the self-same tax period(s) ? 5. The dispute involved in the present writ petition lies in a narrow compass. Undisputed facts are that the petitioner is registered under the OVAT Act. The petitioner has been assessed under Section 43 of the OVAT Act for the period 24.01.2006 to 31.07.2006 vide assessment order dated 25.09.2006 and the said period is again included in the assessment order dated 27.05.2011 passed under Section 42 for the tax period 29.03.2006 to 30.11.2008 impugned in the present writ petition. 6. The Scheme of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e prescribed and after giving the dealer a reasonable opportunity of being heard and after making such enquiry as he deems necessary, proceed to assess to the best of his judgment the amount of tax due from the dealer. xx xx xx (Underlined for emphasis) 8. It may also be necessary for our purpose to extract here the relevant portion of Rule 49 and Rule 50 of the OVAT Rules, 2005. 49. Audit assessment.- (1) If the tax audit conducted under Section 41 results in findings, which the assessing authority considers to be affecting the tax liability of a dealer for a tax period or tax periods, such authority shall serve a notice in Form VAT-306 along with a copy of the audit visit report, upon such dealer, directing him to appear in person or through his authorized representative on such date, time and place, as specified in the said notice for compliance of the requirements of sub-rules (2) and (3). xx xx xx 50. Assessment of escaped turnover.- (1) Where a dealer has already been assessed under Section 39, 40, 42 or 44 and it is required to reopen the assessment under sub-section (1) of Section 43 for occurrence of any or more of the events specified in that sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39, 40, 42 or 44..... and Rule 50 starts with where a dealer has already been assessed under Section 39, 40, 42 or 44 and it is required to reopen.... . Use of the above words in Section 43 and Rule 50(1) makes the legislative intent clear that only after a dealer is assessed or has already been assessed under Sections 39, 40, 42 or 44 of the OVAT Act, reassessment proceeding can be initiated under Section 43 of the OVAT Act. 12. Now, if we closely look at Section 42, which speaks of audit assessment, we will find that where the tax audit conducted under subsection (3) of Section 41 results in detection of suppression of purchase or sale or both, erroneous claims of deduction including input tax audit, evasion of tax or contravention of any provision of the Act affecting the tax liability of the dealer, the assessing authority may notwithstanding the fact that the dealer may have been assessed under Section 39 or 40, serve on such dealer a notice as prescribed under the Rules along with a copy of the audit visit report for making an audit assessment. Therefore, if audit assessment has to be made after completion of any other assessment provided under the OVAT Act, the same is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion of the legislature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the courts. The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities. [885A-D] 15. In view of the above settled legal position, Section 43 cannot be read into Section 42 by the State when the Legislature in its wisdom excluded Section 43 from the provisions of Section 42 of the OVAT Act. Consequentially, no assessment under Section 42 can be made after completion of the assessment under Section 43 for the self-same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o any dealer or class or classes of dealers on being referred to by subordinate officers to check tax evasion. Therefore, in case of an assessee, if the Revenue authorities decide not to exercise the power conferred under Section 41(2) of the OVAT Act read with Rule 41(2) of the OVAT Rules to make audit assessment for particular tax period and choose to proceed to complete the assessment under Section 43 of the OAVT Act, it is thereafter not permissible to assess the petitioner under Section 42 of the OVAT Act. 20. The Hon ble Supreme Court in the case of Institute of Chartered Accountants of India vs. Price Waterhouse and Another, (1997) 6 SCC 312, held as under: 15. .....It is settled rule of interpretation that all the provisions would be read together harmoniously so as to give effect to all the provisions as a consistent whole rendering no part of the provision as surplusage. Otherwise, by process of interpretation, a part of the provision or a clause would be rendered otiose. 21. Law is also well-settled that when the statute requires doing certain thing in certain way, the thing must be done in that way or not at all. Other methods or modes of performance are i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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