TMI Blog2019 (11) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... at for determination of business turnover of a dealer in the prescribed manner and to ascertain the tax liability, the Assessing Officer has to undertake a series of exercise commencing from the issuance of notice, conducting enquiry and thereafter to pass order of assessment. The phrase used under Section 24(5), viz., no assessment under the Section for any year shall be made after a period of three years cannot be considered as the one of passing the assessment order itself within three years and on the other hand, if the process of making the assessment begins by issuing a notice within the period of three years, the assessment order passed later, even after the expiry of three years, cannot be hit by the period of limitation, as provided under Section 24(5). In this case, it is seen that summons in Form-PP for the years 2011-12 to 2013-14 were issued on 07.11.2014 and again on 04.01.2016, wherein and whereby the assessee was called upon to produce certain documents with reference to an enquiry under the PVAT Act, 2007, in respect of assessment years 2011-12 to 2014-15. Therefore, the above summons, which is otherwise called as notice calling upon the petitioner to produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner filed appeals before the First Appellate Authority. Those appeals are still pending with an order of interim stay. The Government of Puducherry issued a notification in G.O.Ms.No.68/F2/2011 dated 31.12.2011, notifying that VAT shall be collected on sale of LPG at 1% for domestic purpose and 3% for industrial purpose. The petitioner firm filed Form-CC pertaining to the assessment years 2011-2012 to 2014-2015. The second respondent issued notices dated 29.01.2016, alleging that while furnishing Form CC, the firm has not furnished the sales details of LPG domestic cylinders, invoices against the sales of LPG domestic cylinders for verification. It was ascertained by the Department that the petitioner had sold LPG cylinder as industrial inputs not only to industries but also to traders which is in violation of Puducherry Value Added Tax Act and Rules 2007. The petitioner gave reply to the said notices on 15.02.2016. The Assessing Officer had neither summoned nor sought any clarification on the returns filed by the petitioner firm. After one year, the second respondent issued another notice dated 23.06.2017 stating that the petitioner firm is liable to pay the differential tax amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d interim stay till the disposal of the appeal. During the pendency of the tax appeal, the petitioner also filed W.P.No.21718 of 2012 to stay all further proceedings on the file of the Assessing Officer in proceedings dated 22.08.2011. In view of the interim stay granted by the Appellate Tribunal and in view of the pendency of the above writ petition, the Assessing Officer has not taken further action for the remaining assessment years. However, after pronouncement of the order of this Court in W.P.No.21718 of 2012, the Assessing Officer issued summons for the assessment years 2011-12 to 2013-14 on 07.11.2014. Subsequently, the second respondent issued another summon for the assessment years 2011-12 to 2014-15 n 04.01.2016. Hence, the second respondent issued notices for the above assessment years within the period of limitation. The petitioner has totally suppressed the above said summons issued to the petitioner and proceeded to contend as though only pre-assessment notices were issued. On verification of the sales details furnished against the sales of industrial inputs to industries, it was ascertained that the petitioner had sold LPG cylinder as industrial inp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24(5) of the Puducherry VAT Act, 2007, specifically bars an assessment for any year after a period of three years from the end of the year to which the return relates. In this case, the very pre assessment notice was issued only on 28.05.2018 for all assessment years. Even the said notice itself is time barred and therefore, the petitioner is not duty bound to answer the said notice, which is per se illegal and without jurisdiction. 6. In support of the above said contention, the learned counsel for the petitioner relied on the decision of the learned Single Judge made in W.P.Nos.8059 to 8061 of 2017 dated 27.07.2017 . 7. Per contra, the learned Additional Government Pleader appearing for the respondents submitted as follows: Section 2(e) of the Puducherry VAT Act, 2007 defines assessment . As per the said definition, the entire process of determination of business turnover of a dealer in the prescribed manner to ascertain the tax liability is to be treated as assessment and therefore, the summon issued on 07.11.2014 is well within three years and thus to be treated as commencement of the assessment proceedings. The peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eturn under this Act relates. Chapter IV of the said Act deals with assessment. Section 24(5) stipulates that no assessment under Section 24 for any year shall be made after a period of three years from the end of the year to which the return relates. 13. A careful perusal of the above provision under Section 24(5) would show that the term assessment alone is used and not an order of assessment . The term assessment is defined under Section 2(e) as extracted supra. It means determination of business turnover of a dealer in prescribed manner to ascertain the tax liability under the said Act by self assessment, re-assessment and assessment by scrutiny and best judgment assessment. Therefore, the term assessment cannot be construed only as an order of assessment and on the other hand, the said term assessment consists several process commencing from the issuance of notice to passing of the order of assessment. Thus, the term assessment includes passing of an order of assessment as well and thus, it does not mean the order of assessment as such. Needless to say that for determination of business turnover of a dealer in the prescribed manne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry by the revisional authority or causing an enquiry to be made thereon, and passing final orders thereon as the revisional authority thinks fit. Therefore, the entire process commencing from the calling of the records and ending with the passing of the final order has been termed as revision in the said Section. Each one of the steps in the process is a revisional process. Therefore, if any one of the steps in the process has been initiated within the period of limitation, there is no further limitation on the exercise of the power. 15. In another decision of the Division Bench of this Court reported in (1980) 46 STC 151 Madras, The State of Tamil Nadu vs. K.O.Mohamed Sulaiman and Co., it is observed at paragraph Nos.21 to 24 as follows: 21. In Sales Tax Officer, Special Circle, Ernakulam v. Sudarsanam Iyengar Sons [1970] 25 S.T.C. 252, the parallel provisions of the Kerala Sales Tax Act were the subject of consideration. Rule 33 of the Travancore-Cochin General Sales Tax Rules, 1950, provided that if for any reason the whole or any part of the turnover of business of a dealer or licensee had escaped assessment to tax in any year, then t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame up for application in Anglo French Textiles Limited, Pondicherry v. State of Tamil Nadu, represented by the Deputy Commercial Tax Officer, Madurai W.P. Nos. 3939 to 3941 of 1971 decided on 14th March, 1972 (Madras High Court), the judgment dated 14th March, 1972. One of the arguments advanced in that case was that in the Kerala Act there was no provision similar to Section 16(4) of the Tamil Nadu Act and that this would make a difference to the applicability of the decision of the Supreme Court. Section 16(4) provides that the time during which the proceedings for assessment remained stayed under the orders of a civil court or other competent authority should be excluded for computing the period of limitation for assessment on the escaped turnover. It was held that this provision had been brought in ex abundanti cautela and that the decision of the Supreme Court would apply, so that, so long as the proceedings were pending within the statutory period, there could be no bar to the completion of the assessment even beyond the statutory period. 24. Thus, the result of these authorities is to establish that so long as the proceedings were pending within the statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the limit being three years. We find it difficult to accept that in the context of sales tax legislation the use of the words proceed to assess and determine would lead to different consequences or result. In this connection the words which follow the word determine in Rule 33 must be accorded their due signification. The words assess the tax payable cannot be ignored and it is clearly meant that the assessment has to be made within the period prescribed. Assessment is a comprehensive word and can denote the entirety of proceedings which are taken with regard to it. It cannot and does not mean a final order of assessment alone unless there is some thing in the context of a particular provision which compels such a meaning being attributed to it. In our judgment despite the phraseology employed in Rule 33 the principle which has been laid in other cases relating to analogous provisions in sales tax statutes must be followed as otherwise the purpose of a provision like Rule 33 can be completely defeated by taking certain collateral proceedings and obtaining a stay order as was done in the present case or by unduly delaying assessment proceedings beyond a period of three yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... way restricting or limiting the scope of powers of section 16. This judgment was followed in two other cases by another Division Bench in State of Tamil Nadu v. Mohamed Sulaiman Co. [1980] 46 STC 151 and in Lakshmanaswami Chettiar Sons v. State of Tamil Nadu [1980] 46 STC 327. The contention that the limitation of five years will have to be calculated with reference to the reassessment order made on 18th November, 1975, is therefore untenable. 18. In W.P.No.36497 of 2006, etc., dated 30.04.2019, a learned Single Judge of this Court, after following the decision of the Supreme court reported in 1969 (2) SCC 396, The Sales Tax Officer vs Messrs Sudarsanam Iyengar and Sons and the Division Bench decision of this Court reported in 1982(49) STC 58, Jeewanlal (1929) Ltd., v. The State of Tamilnadu, has observed that the reassessment proceedings therein were within the limitation period, if the proceedings for reassessment were initiated for commencement prior to the expiry of the limitation period. 19. Perusal of the above decisions and the law laid down therein would undoubtedly show that the contention raised by the petitioner in this cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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