TMI Blog2018 (7) TMI 2006X X X X Extracts X X X X X X X X Extracts X X X X ..... s. - R/Special Civil Application No. 6686 of 2018 - - - Dated:- 16-7-2018 - Mr. M.R. Shah and Mr. A.Y. Kogje, JJ. Mr SN Soparkar, Senior Advocate With Mr Hiren J Trivedi(8808) for the Petitioner. Mr Pranav Trivedi, Assistant Government Pleader for Respondent. ORAL ORDER Mr. M.R. Shah 1. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for an appropriate Writ, direction or order to quash and set aside the impugned orders dated 29.03.2018 (Annexure-N) by which in exercise of powers under Section 34(8A)(a) of the Gujarat Value Added Tax Act, 2003 (hereinafter referred to as the VAT Act ) the Assistant Commissioner of Sales Tax, Unit-I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed authority is satisfied that the tax has been evaded or sought to be evaded or the tax liability has not been disclosed correctly or excess tax credit has been claimed by any dealer in respect of any period or periods by not recording or recording in an in correct manner, any transaction of sale or purchase, or that any claim has been incorrectly made, then in such a case notwithstanding any notice for assessment has been issued under the provisions of this section or any other section of this Act the prescribed authority may, after giving such dealer a reasonable opportunity of being heard, initiate assessment of the dealer in respect of such transaction or claim: Provided that where such proceedings are under section 73 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and interest, if any, shall be levied or demanded from such dealer, at the time of assessment to tax under the other provisions of this section in respect of the said period or periods relating to such transaction or claim. Explanation For the purpose of this sub-section, prescribed authority , the said authority , such authority and any authority shall mean, the Commissioner or, as the case may be, the authorities appointed under section 16 and other officers or persons to whom the Commissioner has delegated his power in this behalf. 35. Turnover escaping assessment. (1) Where after a dealer has been assessed under section 32, 33, 34 for any year or part thereof, the Commissioner has re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period or periods by not recording or recording in an incorrect manner, any transaction of sale or purchase or that any claim has been incorrectly made, then in such a case, notwithstanding any notice for assessment has been issued under other provisions of Section 34 or any other Section of the VAT Act. Section 35 of the VAT Act confers power upon the Commissioner to suo motu take into revision, the order of assessment in case a dealer who has been assessed under Sections 32, 33, 34, and when the Commissioner has reason to believe that the whole or any part of the taxable turnover of the dealer in respect of any period has (a) escaped assessment, or (b) been under assessed, or (c) been assessed at a rate lower than the rate at which it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o take such benefit and the powers can be exercised whenever it has come to the notice of the prescribed authority during the course of any proceedings under the VAT Act. Therefore, with respect, we do not agree with the view taken by the Division Bench in the the case of H.Tribhovandas And Sons v. State of Gujarat (supra) that the period of limitation prescribed under Section 35 of th VAT Act shall also be applicable in respect to the proceedings under Section 34(8A) of the VAT Act. Under the circumstances, the matter is required to be referred to the Full Bench to consider the following questions: (1) Whether the period of limitation prescribed under Section 35 of the VAT Act can be made applicable with respect to the proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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