TMI Blog2017 (2) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... us, the recovery of tax may be permissible through re-assessment u/s 18 of the AGST Act and here it is clear enough that the process of re-assessment was started beyond the limitation period of eight years of the original assessments. Therefore the re-assessment exercise is legally impermissible even for a situation of wrongful assessment at a lower rate - we find merit in the challenge of the assessee to the order of re-assessment and accordingly the impugned exercise and the orders for recovery of additional tax plus interest are found to be unsustainable in law - petition disposed off - decided in favor of assessee. - Revision Petition No.17/2014, Revision Petition No.18/2014 - - - Dated:- 17-1-2017 - Hrishikesh Roy And Nelson Sailo, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Govt. Notification of 03.01.2003 and therefore the rate of tax at which assessment were completed, is contended to be in accordance with law. Therefore the petitioner argues that re-assessment at higher rate of tax (13.2%) is impermissible, when the original assessment stood concluded, without any further challenges before the higher authorities. 5. Representing the Revenue, Mr. B. Choudhury, the learned standing counsel however cites Kamakhya Plastics (P) Ltd. vs. State of Assam, reported in (2012) 49 VST (Gau), to contend that the notification of January 03, 2003, under which the tax was assessed at the concessional rate of 4%, is to apply prospectively from the date of the notification and therefore the assessment to tax at low ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt clarified in the judgment itself that the right of the State to recover tax is enforceable only if, such right did not stand extinguished by law. 8. Purporting to act on the authority of the Division Bench decision in the Kamakhya Plastics (P) Ltd. (Supra), the show cause notice of 10.06.2011 was issued under Section 18 of the AGST Act, read with Section 108 of the AVAT Act. It was projected in the notice that the assessee undeservingly availed the benefit of concessional rate of tax under the cover of the Notification of 03.01.2003, during the period, when the said notification was held to be inapplicable, in Kamakhya Plastics (P) Ltd. (Supra). Accordingly re-assessment was proposed, to levy tax at 13.2% for the concerned transaction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee then approached the Assam Board of Revenue to challenge the decision of the appellate authority but the Appeals were admitted on 30.08.2012, only on the limited question of imposition of interest and penalty. Eventually under the impugned verdict of 09.09.2013, both Appeals were dismissed by the Revenue Board, which held that assessment at the concessional rate of tax at 4% between 01.05.2001-03.01.2003, under the cover of Notification of 03.01.2003 was incorrect and hence the Government is entitled to recover the additional tax, which escaped assessment at the time of the original assessment made on 17.03.2006 and 26.10.2006 respectively. Consequently, the levy of interest on the additional tax was also held to be justified, in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .. 14. The above ratio makes it clear that, equitable considerations have no place in deciding a tax liability and before a person is brought within the ambit of tax, it must be shown that the charging section applies to that person without any ambiguity and in clear terms. It is also provided that if two interpretations are possible, the judicial interpretation can t lean in favour of the Revenue. To apply the ratio in the present facts, we are constrained to hold that if tax escaped assessment on account of erroneous order and re-assessment is time barred, recovery of the escaped tax can t be made through invocation of the re-assessment power. 15. In the present matter, the show cause notice for re-assessment was issu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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