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TMI Blog2019 (7) TMI 1666X X X X Extracts X X X X X X X X Extracts X X X X ..... eunder, inter alia, on grounds that it was barred by limitation and thus, void ab initio. Mr. Chiranjiva Ranjan, learned counsel for the petitioner while admitting to the position that a revision application bearing C.C.(s) 404 of 2018-19 under Section 74 of 'the Act' is pending disposal before the respondent no. 2, would submit that where action complained itself is void, the petitioner may not be relegated and the matter be disposed of accordingly. In the nature of the issue that was raised that we permit the petitioner to question the proceedings in the present writ petition itself as it requires an interpretation of the statutory provisions and thus having heard learned counsel for the parties, we are persuaded to allow the petitioner to question the assessment proceedings itself in the present writ petition. Consequentially, I.A. No. 1 of 2019 filed in the present writ petition is allowed. Re: CWJC 8478 of 2019 As we have observed above, the writ petition was initially filed, seeking a direction in the nature of mandamus to release the bank account of the petitioner from attachment under Section 47 of 'the Act'. The petitioner also prayed for a direction to the Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich got concluded vide order dated 31.03.2018, a copy of which is enclosed at Annexure-1 to the writ petition with the demand notice at Annexure-1/2. It is raising various grounds to question the order of re-assessment that the petitioner approach the Commissioner under Section 74 of 'the Act' vide application at Annexure-2 and which remains pending. It is when the account of the petitioner was attached through Memo No. 451 dated 24.01.2019 through notice issued under Section 47 of 'the Act' impugned at Annexure-3 and since the revision of the petitioner was not being heard by the Commissioner nor the stay application being entertained that he approached this Court and for the reasons that we have recorded above, we have allowed him to question the re-assessment proceeding including the attachment order on its validity. Mr. Chiranjiva Ranjan has questioned the reopening of the proceedings under Section 31 and its culmination in the order of reassessment dated 31.03.2018 as well as the consequential demand notice also dated 31.03.2018 on grounds that it is an exercise without jurisdiction, inasmuch as according to the petitioner it is hopelessly barred by limitation as well as on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 27 of 'the Act' because a default of the kind noted in Section 31 which leads to reopening of an assessment, has been treated equivalent to a default of non- filing of return. We are in complete agreement with the submission of Mr. Vikash Kumar, learned SC-11 for a conjoint reading of Section 31 and Section 27 would confirm that while liberty has been granted to the assessing authority to proceed in the matter of reassessment based on a departmental audit made under Section 26(3) of 'the Act', with 4 years of the 'due date', the outer limit for conclusion of such obligation is found in the 3rd proviso attached to Section 27 and the reason is because the omission or failure or non-disclosure has been treated equivalent to a non-filing of the return as manifest from the legislative intent. Having observed thus, we find no infirmity in so far as the issue of limitation raised by Mr. Ranjan is concerned and we hold the proceedings to be within time. In our opinion the problem for the State does not end here and we say so because even though the departmental audit has been done within the limitation prescribed under Section 26(3) and even the initiation under Section 31(1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credit, and the provisions of this Act shall, so far as may be, apply accordingly as if the notice under this sub-section was a notice under Section 27: Provided that the amount of tax shall be assessed or re-assessed after allowing such deductions as were allowable during the said period and at the rates at which it would have been assessed had the turnover not escaped assessment. ... ... .... ... Rule 22. Audit and Re-assessment of Tax.- ... ... ... ... (8)(a) A copy of the final audit report, drawn up by the audit team in terms of the provisions of sub-rule (7) shall be forwarded by the Joint Commissioner, Incharge of the Audit to the concerned Circle Incharge within two months of the preparation of the final audit report. (b) The concerned Circle Incharge shall allot the file to any officer posted under him. (c) if, after considering the final report, the officer to whom the file has been allotted is of the opinion that the dealer had not disclosed his correct tax liability or had concealed or omitted any fact or, as the case may be, presented any fact in such a manner, that has led to any reduction in the tax payable by the dealer, he shall proceed to initiate pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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