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TMI Blog2016 (11) TMI 1199X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in the case of Dhanani Imp. Exp. Pvt. Ltd. V/s. State of Gujarat and another in Special Civil Application No.9519 of 2016, with the consent of learned advocates for the respective parties, present petition is taken up for final hearing today. 2. Feeling aggrieved and dissatisfied with the impugned assessment order dated 10th August, 2016 passed under Section 34 (8A) of the Gujarat Value Added Tax Act, 2003 (herein after referred to as 'the VAT Act, 2003'), the petitioner has preferred the present special civil application under Article 226 and/or 227 of the Constitution of India. 3. At the outset, it is required to be noted that though the petitioner has challenged the order of assessment dated 10th August, 2016 passed by the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show cause notice dated 6.6.2016 and it was proposing to disallow input tax credit and to levy interest and penalty on the differential dues. The petitioner objected to the aforesaid issue based assessment proceedings issued under Section 34 (8A) of the Act. The respondent No.2 - Assessing Officer passed the assessment order under Section 34 (8A) of the Act on 10th August, 2016 denying the input tax credit of Rs. 13,82,272/-. By the aforesaid order, the demand of additional dues to the tune of Rs. 57,57,100/- came to be issued which, inter-alia, included tax of Rs. 13,82,272/- interest of of Rs. 23,01,488/- and penalty of Rs. 20,73,340/-. 6. Feeling aggrieved and dissatisfied with the impugned assessment order, the assessee has preferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Imp.Exp. Pvt. Ltd. (supra). In a case before the Division Bench, the Assessing Officer also invoked Sub-Section (8A) of Section 34 of the Act after the assessee's assessment became final and by efflux of time, even exercise of powers by the Commissioner under Section 35(1) became barred by limitation. While quashing and setting aside the said assessment order passed under Sub-section (8A) of Section 34, the Division Bench has observed in paragraph Nos.12 and 13 as under:- "12. When the petitioner's assessment thus became final and by efflux of time, even exercise of powers by the Commissioner under section 35(1) became barred by limitation, subsection (8A) was not even yet introduced in the statute book. We have serious doubt whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at any stage that may be pending. Mere internal scrutiny or examination of file cannot be said to be pendency of proceedings envisaged in clause( a) of subsection (8A)". 11. Applying the aforesaid decision to the facts of the case on hand, the impugned order passed by the Commercial Tax Officer, Rajkot can be said to be without jurisdiction inasmuch as the assessment has been made for the period between 1.4.2006 to 31.3.2007 beyond the period of limitation, which is 4 years as prescribed under Section 34 (9) of the Act. 12. In view of the above and for the reasons stated above, the petition succeeds on the aforesaid ground alone. The impugned assessment order dated 10th August, 2016 passed in exercise of powers under Sub-Section (8A) of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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