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2016 (10) TMI 898 - PATNA HIGH COURT

2016 (10) TMI 898 - PATNA HIGH COURT - TMI - Validity of assessment order - Section 26 of the BVAT Act, 2005 - no notice served upon the petitioner - Held that: - A registered notice sent on the proper address carries presumption of delivery in terms of Section 27 of the General Clauses Act although it gets returned. - Period of limitation - the order is beyond the period prescribed for completing the assessment - Held that: - The order of assessment itself stipulates that none has put in ap .....

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ent. 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 the case 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 pr .....

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n Case No. 12158 of 2016 - Dated:- 4-10-2016 - Hemant Gupta And Ahsanuddin Amanullah, JJ. For the Petitioner's : Mr. D. V. Pathy, Advocate For the Respondent's : Mr. Vikash Kumar JUDGMENT ( Per : Honourable Mr. Justice Hemant Gupta ) The challenge in the present petition is to an order passed by the Assistant Commissioner of Commercial Taxes, Bagaha Circle, Bagaha, on 20th June, 2013 under Section 26 of the Bihar Value Added Tax Act, 2005 (for short, the Act ) pertaining to assessment ye .....

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ion 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, there .....

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h Rule 22 of Bihar Value Added Tax Rules, 2005. The proceedings were taken up for assessment on 1st of June, 2013 and as mentioned above, notice was issued. 7. To appreciate the argument whether such proceedings are beyond the period of limitation or not, some of the relevant provisions of the Act and the Rules read as under: 24. Returns, Payment of Tax, Interest and Penalty.-(1) Every person, being a dealer, who is not registered under this Act, by a notice served in the manner prescribed by th .....

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chases, receipts and dispatches of goods and 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. Expl .....

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ollowing the year to which such return relates, in any other cases. 31. Assessment or Re-assessment of Tax of escaped turnover- (1) If the prescribed authority is satisfied, either on the basis of audit conducted under sub- section (3) of section 26 or otherwise, that reasonable grounds exist to believe that, in respect of any assessment under this Act or under the Bihar Finance Act, 1981, (Bihar 5 of 1981) as it stood before its repeal by section 94, during any period, any sale or purchases of .....

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er within four years from the expiry of the year during which the original order of assessment or re- assessment was passed, 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, 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 suc .....

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of tax which is or may be assessed on the turnover of sale or purchase which escaped assessment. (b) The penalty imposed under clause (a) shall be in addition to the amount of tax, which is or may be assessed on the turnover of sale or purchase which escaped assessment. (c) No order shall be passed under this sub-section without giving the dealer a reasonable opportunity of being heard. (3) Any assessment or re-assessment made and any penalty imposed under this section shall be without prejudice .....

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of sub section (1) of section 25. Provided that the return under sub-section (3) of Section 24 shall be scrutinized before the end of the year following the year to which such return relates. (emphasis supplied) 8. A perusal of Section 31(1) of the Act shows that the period of limitation is four years from the expiry of the year during which the original order of assessment or order of re-assessment was passed. As per the petitioner, no order of assessment was earlier passed, therefore, it is ca .....

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uch 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 Section 24 of the Act. If the provisions of Section 24(3) of the Act and Rule 21 are read together, it will show that in respect of assessment year 2007-08, due date would be 31st of December, 2009. Therefore, the assessment could be completed within four years of 31st of December, 2009, i.e. 31st of December .....

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