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TMI Blog2019 (3) TMI 1708X X X X Extracts X X X X X X X X Extracts X X X X ..... s a classic example of the number of times that the Assessing Authority under the Value Added Tax Act, 2005 (hereinafter referred to as 'the Act') has to exercise statutory jurisdiction for reaching a just conclusion. The challenge is posed before us because, it has become a routine exercise by the Assessing Authority under 'the Act' to first pass an order of assessment according to his wisdom which is followed by a reassessment in case of an objection either under Section 26(3) of 'the Act' on an internal audit or under Section 33 of 'the Act', on an objection made by the Comptroller and Auditor General which leads to reopening of an assessment and consequential order of reassessment. One would expect that the buck would stop there but th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious round of challenge was pending before the Appellate Authority that an objection came to be raised under Section 26 (3) of 'the Act' on a departmental audit, on the issue of Tax Free Sales and following which audit objection, a notice was issued to the petitioner under Section 31 of 'the Act' by the Assessing Authority on 20.12.2011. This date is quite relevant for the issue put up for contest. A reassessment proceeding followed even when the petitioner invited the attention of the Assessing Authority that the matter was pending in appeal. The Assessing Authority proceeded with the reassessment which resulted in an order dated 26.03.2012 raising fresh liability on the issue of Tax Free Sales as well as on some other issues. This order i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only the second round exercise is hopelessly barred by limitation so prescribed under Section 26(3) of 'the Act' read alongside Section 24(3) of 'the Act', it is also a case of change of opinion by the Assessing Authority on the same set of facts which were much available even at the stage of passing of the original order by the Assessing Authority and there has been no change in the circumstances. According to Mr. Samdarshi, even though the Joint Commissioner (Appeals) had remitted the matter for consideration which was on the limited aspects as regarding Tax Free Sales and whether there was any material available for the Assessing Authority to reverse his earlier opinion which allowed the claim but the Assessing Authority in misinterpreta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be conducted within 36 months from the due date "within the meaning of Section 24(3) of 'the Act'. Section 24(3) of 'the Act' which provides an explanation to the term due date runs under: "24(3) Every registered dealer shall furnish to the prescribed authority, on or before the due date, a true and complete return in respect of every financial year in the form and manner prescribed. Explanation-In this sub-section, "due date" means- (a) the 31st day of December of the year following the year to which such return relates in the case of the following classes of dealers: (i) a company within the maning of the Companies Act, 1956, or (ii) a person, other than a company, whose accounts are required, under this Act or under any oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing the year to which such return relates." There is a subtle distinction in the language present in the explanation attached to Section 24(3) seen against the proviso attached to Rule 21(2). While the explanation of due date attached to Section 24(3) clearly mentions 31st December of the year following the year to which the return relates meaning thereby if the return relates to the year 2006-07 then 31st December, 2007, on the other hand the proviso to Rule 21(2) speaks of the 'end of the year' following the year to which a return relates which means that if the return relates to the year 2006-07 then the end of the year following the year to which a return relates, would mean 31.3.2008 because the term 'year' has been defined in Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld additional issues. The third issue which renders the exercise illegal is that in the order so passed on remand, impugned at Annexure-5, the Assessing Authority has failed to explain the materials which surfaced subsequently and were not available at the time of the original assessment. The order is silent on such discussion and thus it was rightly canvassed by Mr. Samdarshi that the order impugned is a second opinion on same set of facts. In this regard we are persuaded to reproduce the opinion expressed by the Supreme Court at paragraph-29 of the judgment rendered in the case of Aryaverth Chawal Udyog (supra) which succinctly explains the legal position and confirms the illegality in the action of the Assessing Authority to reopen the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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