9911796707
TMI Blog2016 (7) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 41(3) of the Gujarat Sales Tax Act, 1969 is time barred in view of the provisions of Section 41(3) read with Section 42(1) of the Act?" 3. The applicant is carrying on business of manufacturing Paver Finisher Machine and its parts and is registered as a dealer under the Act. The applicant had collected and paid sales tax on the said machine as per entry 16(1) in Schedule II-A of the Act. However, the Sales Tax Officer issued a notice in Form 36 and passed assessment order on 31.03.1990 imposing tax as applicable to entry 13 in Schedule III to the Act on sales of Paver Machine. Accordingly an extra demand of tax in addition to the tax paid with the return was raised. Interest was also imposed by the assessing officer. Being aggrieved by the said order an appeal was filed before the Assistant Commissioner of Sales Tax who confirmed the order of the assessment passed by Sales Tax Officer. The applicant therefore filed Second Appeal No. 227 of 1991. The Tribunal set aside the orders of the Assistant Commissioner of Sales Tax as also the order of assessment. The State of Gujarat made an application for referring the question of law to this Court. 4. Mr. Hardik Vora, learned A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specified therein, either to attend and produce or cause to be produced all evidence on which such dealer relies in support of his declarations or returns, or to produce such evidence as is specified in the notice. On the date specified in the notice, or as soon as may be thereafter, the Commissioner shall, after considering all the evidences which may be produced, assess the amount of tax due from the dealer. Provided that where a notice under this sub-section is not issued to the dealer - (a) on or before the 31st March, 1992, in relation to any year commencing on any day before the 31st March, 1990, or (b) within a period of one year from the date by which the last quarterly or, as the case may be, annual return is required to be furnished under sub-section (1) of section 40, in relation of any other year subsequent to year referred to in clause (a). the dealer shall be deemed to have been assessed on the basis of and for the year for which quarterly returns or, as the case may be, annual return is furnished by the dealer. Provided further that nothing in the preceding proviso shall apply - (a) to a dealer whose turnover of purchases or turnover of specified sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) No order of assessment for a year commencing on the 1st day of April 1998, or part of such year or any year thereafter or part of such year shall be made under sub-section (3) or (4) of section 41 at any time after the expiry of three years from the end of the year in which the last monthly, quarterly or, as the case may be, annual return is filed. (2) Where the Commissioner issues a notice under sub-section (6) of section 41, to any dealer for assessment of tax in respect of any period, no order of assessment shall be made for such part of the period, if any, as is prior to - (a) a period of eight years ending on the last date of the year immediately preceding the year in which such notice is issued, in a case where the Commissioner has reason to believe that such dealer has failed to apply for registration within intention to defraud Government revenue; and (b) a period of four years ending on the last date as aforesaid, in any other case : Provided that for the purpose of this section if it is considered necessary so to do, the State Government may, subject to such conditions as it may deem fit, and the Commissioner may, subject to such conditions as may be prescribe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (5) of the Act if the returns are not filed. However, in cases where the assessee or the Dealer, has not obtained any registration as required, a separate procedure under subsection 6 of the Section 41 of the Act has been provided. But even in those cases, it may be open to the Assessing Officer to invoke the provision of Section 41(7) of the Act. But in those cases, the assessment will be made under Section 41(6) read with 41(7) of the Act. The aforesaid shows two separate modes of assessment broadly; one of a dealer who is registered with the sales tax authority and the one of a dealer who is not at all registered with the Sales Tax authority. As observed earlier, even in a case where the dealer is registered with the Sales Tax authority, two situations are separately considered, one in a case where the return is filed but not found to be complete or correct and another in a case where the return is not at all filed or not filed within the prescribed time limit. In a case, where the registration of dealer is there, Revenue is aware about the existence of the business and, therefore, it is very convenient to enforce the provisions of the Sales Tax Act including filing of the retur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vered by the provisions of Section 42(1) of the Act for the time limit within which the assessment has to be completed. The second reason is that subsection 6 of Section 41 of the Act does not include the contingency of non filing of the return, but rather the basic requirement is that the registration is not obtained or the person who has failed to apply the registration within the time prescribed. In any event as observed by us herein above, Section 41(7) is no independent mode of assessment but rather a step in furtherance to the assessment which is applicable to both type of assessment, either under Section 41(3), 41(4) and also 41(5) of the Act as well as for Section 41(6) of the Act. It cannot be said that merely because a mode was undertaken under Section 41(7) of the Act, the limitation provided under Section 42(1) of the Act for completing the assessment, would not be applicable. 11. The attempt was also made by learned Assistant Government Pleader to contend that language of Section 41(7) of the Act is with a non abstain clause and, therefore, it be treated as independent mode of assessment. We find that such an attempt, is ill founded inasmuch as the word non abstain cl ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
