TMI Blog2016 (11) TMI 1199X X X X Extracts X X X X X X X X Extracts X X X X ..... the original assessment and any scope by the Commissioner to revise the tax in terms of subsection (1) of section 35 has long pass, been barred by limitation, would expose the provision to vulnerability on the ground of virus - 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. The impugned assessment order dated 10th August, 2016 passed in exercise of powers under Sub-Section (8A) of Section 34 of the VAT Act is hereby quashed and set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate Commissioner, as per the respondents stated herein below, the order of assessment is wholly without jurisdiction, the present petition is entertained and the legality and validity of the impugned assessment order is considered and decided on merits. 4. The facts stated in the present special civil application in nutshell are as under: 5. That the original assessment order came to be passed on 31st March, 2009 for F.Y.2006-2007. At this stage, it is required to be noted that it was a case of self assessment return filed by the petitioner for F.Y. 2006-2007. It is an admitted position that as per the provisions of Section 33(3) of the VAT Act, 2003, the petitioner is deemed to have been assessed as per the returns filed as no not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 and/or 227 of the Constitution of India. 7. Shri Apurva N.Mehta, learned advocate appearing on behalf of the petitioner has vehemently submitted that, in the facts and circumstances of the case, the Commercial Tax Officer, Rajkot wrongly invoked Sub-section (8A) of Section 34 of the VAT Act. It is submitted that admittedly, no assessment was pending till the proceedings become time barred. It is submitted that for the first time, the notice came to be issued on 10th August, 2016 and that too, based on the audit objection. It is submitted that therefore the assessment order passed by the Assessing Officer is wholly without jurisdiction. In support of his above statement, he has heavily relied upon the decision of Division Bench of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he periods prior to the date when the provision was enacted. However, at any rate, to apply to such a situation where the original assessment and any scope by the Commissioner to revise the tax in terms of subsection (1) of section 35 has long pass, been barred by limitation, would expose the provision to vulnerability on the ground of virus. 12. There is yet another strong reason why we cannot upheld the action of the respondent authorities. Clause( a) of subsection (8A) which empowers the prescribed authority to collect tax when it is found that tax has been evaded or sought to be evaded or tax liability has not been disclosed correctly or excess tax has been claimed, the same can be done during the course of any proceedings if the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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