TMI Blog2022 (10) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... of limitation. The Court has further held that in order to invoke Section 22 (1) of the Act of 2005, there must be an order of assessment by the Assessing Officer in contradistinction to Section 22 (1) of the Act of 2005, which is a deemed assessment. After recording that held, thus the jurisdictional fact and condition precedent for invoking provisions of Section 22 (1) of the Act of 2005 i.e. the order of assessment, was not in existence on the date of issuing notice for reassessment under Section 22 (1) of the Act of 2005. Therefore, the Assessing Officer was jurisdiction-less to initiate reassessment proceedings under Section 22 (1) of the Act of 2005 and the order of reassessment ultimately passed is without jurisdiction and without authority of law and de hors the provisions contained in Section 22 (1) of the Act of 2005, as such, it deserves to be quashed. It is clear that there was no order of assessment, which is a condition precedent to invoke jurisdiction under Section 22 (1) of the Act of 2005 in the case of present petitioner also. In absence of there being any order of assessment, respondent No.4 Commercial Tax Officer, Rajnandgaon was not having any juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving verification report from Delhi, the Commissioner vide orders impugned rejected yearly return submitted and reassessed the tax under Section 22 (1) of the Act of 2005 after issuing notice. Petitioner company aggrieved by the order of re-assessment passed under Section 22 (1) of the Act of 2005 read with Section 9 (2) of the Act of 1956, preferred revisions under Section 49 (1) of the Act of 2005 which came to be dismissed vide order dated 14.3.2018 by respondent No.2 against which petitioner-company preferred these writ petitions seeking following reliefs:- WPT No.152/2018 ; 10.1. Calling for the records of the case. 10.2. Setting aside / quashing the revision order dated 14.3.2018 being Annexure P/6 10.3. Setting aside/quashing the assessment order dated 30.8.2017 being Annexure P/1 . 10.4. Directing the respondent not to take any coercive measures/actions, for recovery of any tax amount, arising out of the impugned assessment and revision orders till the petition is disposed of. 10.5. Any other relief that this Hon ble Court may deem fit. WPT No.153/2018 ;- 10.1. Calling for the records of the case. 10.2. Setting aside / quashin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent No.3 is per-se illegal and arbitrary. Aggrieved with the order passed by the authority under Section 9 (2) of the Act of 1956 read with Section 22 (1) of the Act of 2005, petitioner preferred revision petitions before the Commissioner under Section 49 (1) of the Act of 2005 specifically pleading that all three purchasing dealers of petitioner company were registered, their status in official website of department is shown as active ; Form-C have been issued online which is confirmed by TIN case assessment. Cancellation of registration certificate is from later date of sale transactions, therefore, the petitioner could not be held liable for any mischief or wrong, if committed by purchasing dealer. The Revisional Authority has also not considered the aspect of cancellation of registration of purchasing dealers on later date with retrospective effect to be arbitrary, illegal and dismissed the revision. He also pointed out that unless and until order of assessment is passed, there cannot be re-assessment proceeding. Hence, also the order dated 28.8.2017 (Annexure P-1) passed by the respondent No.3-Assistant Commissioner is not sustainable. In support of this contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Jeans Knit Private Limited, Bangalore vs. Deputy Commissioner of Income Tax, Bangalore reported in 2016 SCC Online SC 1536 taking note of earlier decision in case of Commissioner of Income Tax vs. Chhabil Das Agrawal reported in (2014) 1 SCC 603 , Hon'ble Supreme Court held that writ petitions can be entertained if they come within the principles laid down in the case of Calcutta Discount Company vs. ITO reported in AIR 1961 SC 372 . Recently in case of Assistant Commissioner of State Tax ors vs. Commercial Steel Ltd. reported in 2021 SCC Online SC 884 , Hon ble Supreme Court while dealing with issue of maintainability of writ petition has held that High Court having regard to the facts of case, can exercise discretion to entertain or not to entertain writ petition. An alternative remedy is not an absolute bar for invoking writ jurisdiction of the High Court under Article 226 of the Constitution of India and in cases where the authority against whom writ is filed is shown to have had no jurisdiction or had usurped jurisdiction without any legal foundation, a writ petition can be entertained. 10. In case at hand, the petitioner has raised the ground that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f sub-section (1) :Provided that the assessment under this sub-section of every such registered dealer who is required to furnish audit report under subsection (2) of section 41 shall be deemed to have been made if such dealer has furnished the audit report along with the statement referred to in sub-clause (iv). (3) Notwithstanding the provisions of subsection (2), the commissioner shall select for reassessment a number of such dealers as he deems fit whose assessment for a year is deemed to have been made under sub-section(1) in accordance with the provisions of sub-section (2)and such selection shall be made within one calendar year from the said year. (4) (a) The Commissioner shall serve on a registered dealer referred to in the proviso to sub-section (1) or in sub-section (3) or a registered dealer who is not eligible for assessment under sub-section (2) with a notice in the prescribed form appointing a place and day and directing him- (i) to appear in person or by an agent entitled to appear in accordance with the provisions of Section 24; or (ii) to produce evidence or have it produced in support of the returns; or (iii) to produce or cause to be produced acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incorrectly been allowed while making the assessment; or (e) is rendered erroneous and prejudicial to the interest of revenue consequent to or in the light of any judgment or order of any Court or Tribunal, which has become final, the Commissioner may at any time within a period of five calendar years from the date of order of assessment, or from the date of judgment or order of any Court or Tribunal proceed in such manner as may be prescribed, to assess or re-assess, as the case may be the tax payable by such dealer after making such enquiry as he considers necessary and assess or re-assess to tax. (2) The Commissioner shall, where the omission leading to assessment or re-assessment made under sub-section (1) is attributable to the dealer, in addition to interest at the rate specified in sub-clause (iii) of clause (a) of sub-section (4) of Section 19, impose upon him a penalty not exceeding twice the amount of tax so assessed or re-assessed but shall not less than one and half times of the amount of tax assessed. (3) The assessment or reassessment under sub-section (1) shall be made within a period of two calendar years from the date of commencement of the proceedings und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atise of the Law of Judgments 19, at 28 (Edward W. Tuttle ed., 5th ed.1925). 25. The legislature is quite competent to create a legal fiction, in other words, to enact a deeming provision for the purpose of assuming existence of a fact which does not really exist. (See J.K. Cotton Spinning Weaving Mills Ltd. v. Union of India.) 26.The Supreme Court in the matter of Rishabh Agro Industries Ltd. v. PNB Capital Services Ltd. defined the word deemed with reference to the provisions of the Companies Act as under:- The word deemed used in the section would thus mean, supposed , considered , construed , thought , taken to be or Presumed . 27.The Supreme Court in the matter of Harish Tandon v. Additional District Magistrate, Allahabad has held that full effect has to be given to the legal fiction created by statute and held as under:- 13. The role of a provision in a statute creating legal fiction is by now well settled. When a statute creates a legal fiction saying that something shall be deemed to have been done which in fact and truth has not been done, the court has to examine and ascertain as to for what purpose and between what persons such a statutor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two copies after the words form 17-A in Rule 20(2) (d) were inserted. Rule 20(2)(d)provides that after submission of electronic return, form 17-A in two copies be submitted along with copy of the challan of the tax deposited within thirty days in the relevant circle and acknowledgment has to be obtained. Rule 20(2)(e) provides that if the acknowledgment prescribed under clause (d) is not obtained, then it will be deemed that no return has been filed. Argument of Mr. Sharma that the date of acknowledgment of submission of electronic return is the date of the order of deemed assessment, and therefore, it is incorrect to say that there is no date of order of assessment, is misconceived. The acknowledgment obtained for submission of return cannot be construed to mean that the acknowledgment had resulted in an order of assessment. 30. In D. Saibaba (supra), in the context of commencement of the period of limitation for filing review petition, expression date of that order as occurring in Section 48AA of the Advocates Act, 1961, the Hon ble Supreme Court observed that the same has to be construed as meaning the date of communication or knowledge of the order to the review petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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