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TMI Blog2015 (5) TMI 838X X X X Extracts X X X X X X X X Extracts X X X X ..... 14, was time barred. The relevant period for assessment is 01.04.2009 to 31.03.2010. Monthly returns were filed for the entire period by the petitioner. According to the learned counsel for the petitioner the last date for re-assessment as prescribed by section 34 of the said Act would be 31.03.2014. 2. Section 34 of the said Act reads as under:- 34. Limitation on assessment and re-assessment (1) No assessment or re-assessment under section 32 of this Act shall be made by the Commissioner after the expiry of four years from - [(a) the end of the year comprising of one or more tax periods for which the person furnished a return under section 26 or 28 of this Act; or] (b) the date on which the Commissioner made an assessment of tax for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned ASG, appearing on behalf of the respondent submitted that if one were to examine the default assessment notice dated 09.07.2014 it would be evident that the petitioner was repeatedly taking time to furnish details and did not do so and it is for this reason that the extended period provided in the proviso to section 34(1) was invoked although there is no such express invocation. Mr Jain submitted that though the language used in the proviso is not specifically recorded in the order/notice, if one were to examine the same in detail the ingredients thereof would be reflected in it and, therefore, the respondent was well within his right to pass the order within the extended period of limitation. 5. We have examined the decision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nrecorded reason to believe and thereupon decide whether the requisite conditions for invoking proviso to Section 34(1) of the DVAT Act were actually satisfied or not. The issue or question raised would be answered on guess work or mere probabilities as to the "reason to believe". Invoking proviso to Section 34(1) of the DVAT Act certainly imposes civil liability and has adverse consequences, so an assessee must have the right to question and challenge formation of the belief. An effective, decisive and erudite decision would be possible only when there would be no uncertainty and misgiving as to the "reasons to believe". This could be easily and without any discern and difficulty avoided by making a note in writing . The "written belief" w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty cannot write or formulate the "reason to believe". The statutory mandate is that the reason should be recorded by the competent authority/Commissioner and should be before or at the time of passing of the default assessment order. If and had the authority, passing the default assessment order, recorded the "reasons to believe" on the same lines as the Objection Hearing authority, the outcome and decision possibly would have been different." (underlining added) 6. It is, therefore, clear from the said decision that the preconditions for invoking the extended period are that the Commissioner should record reasons to believe that the tax has not been paid and that the reason for non payment of tax should be concealment, omission or failur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (HQ). The said noting is reproduced in its entirety herein below:- "Sub: Request for Extension of time to conduct Audit of Cases pertaining to CWG. May kindly see the list of cases allotted to this branch for audit of business affairs, for the year 2009-10 & 2010-11. These cases have been recommended for audit by the CVC as these firms were engaged in Common Wealth Games related projects. It is pertinent to mention here, that all the officers of the Branch are currently engaged in Enforcement duties in accordance with the order of the Competent Authority. Besides, the ensuing Election duties are sure to keep these officer occupied upto mid May, 2014. Since, the cases for the year 2009-10 are due to get time-barred by 31.03.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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