TMI Blog2016 (10) TMI 898X X X X Extracts X X X X X X X X Extracts X X X X ..... tered notice sent on the proper address carries presumption of delivery in terms of Section 27 of the General Clauses Act. Still further, merely because demand notice was sent after three years will not raise a presumption of ante-dating the order as it is categorically mentioned in the counter affidavit that the demand notice was prepared on the same date, but due to clerical mistake it could not be sent. Therefore, mere fact that the demand notice was sent in the year 2016 will not be enough to raise presumption that the order has been ante-dated. The case of State of Andhra Pradesh Versus Khetmal Parekh & M. Ramakishtaiah and Co. [1994 (2) TMI 260 - SUPREME COURT OF INDIA] referred by petitioner do not apply to the present case as in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition may not be liable for dismissal on the ground of delay and laches, but the question is whether such order of assessment can be challenged by the petitioner in a writ application without availing the statutory remedy. 3. The impugned order of assessment is challenged on the grounds (1) that no notice was served upon the petitioner; and (2) that the same is beyond the period prescribed for completing the assessment. 4. In respect of the first argument, in the counter affidavit, it is pointed out that the notice under the Registered Post was sent to the petitioner, which was not received back. Since the registered notice was sent to the address of the petitioner, therefore, it is deemed to be served. 5. A perusal of the procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d any other transactions prescribed specifically for each quarter, on or before such date as the Commissioner may, by notification, specify; Provided that different dates may be specified in respect of different categories of registered dealers. (2) deleted (3) Every registered dealer shall furnish to the prescribed authority, on or before the due date, a true and complete return in respect of every financial year in the form and manner prescribed. Explanation: In this sub-section, due date means -- (a) the 31st day of December of the year following the year to which such return relates in the case of the following classes of dealers: (i) a company within the meaning of the Companies Act, 1956 or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se or input tax credit, and the provisions of this Act shall, so far as may be, apply accordingly as if the notice under this sub-section was a notice under section 27: Provided that the amount of tax shall be assessed or re- ssessed after allowing such deductions as were allowable during the said period and at rates at which it would have been assessed had the turnover not escaped assessment. (2) (a) The prescribed authority shall, in a case where the dealer has concealed, omitted or failed to disclose full and correct particulars of such sale or purchase or input tax credit, direct that the dealer shall, besides the amount of interest payable under sub- section (10) of section 24, pay by way of penalty a sum equal to three time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f assessment was earlier passed, therefore, it is case of deemed assessment on filing of the annual returns. 9. Sub-section (3) of Section 24 of the Act contemplates that every registered dealer shall furnish to the prescribed authority, before the due date, a true and complete return in respect of every financial year. The due date is 31st December of the year following the year to which such return relates which includes a company, such as the present petitioner. In respect of other assessee, 31st day of July of the year following the year to such return relates is the due date. 10. In terms of Rule 21 of the Rules, the return is required to be scrutinized before the expiry of the due date within the meaning of sub-section (3) of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned in the counter affidavit that the demand notice was prepared on the same date, but due to clerical mistake it could not be sent. Therefore, mere fact that the demand notice was sent in the year 2016 will not be enough to raise presumption that the order has been ante-dated. 13. The order of the Supreme Court in M. Ramakishtaiah Co. s case (supra) arises out of the fact where the Department could not offer any explanation as to why there was delay in sending demand notice, but a perusal of the demand notice in the present case shows that it bears the same date as the date of order, but it has been delivered to the appellant only thereafter. Therefore, the explanation of the Department in the counter affidavit cannot be said to be u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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