TMI Blog2022 (12) TMI 264X X X X Extracts X X X X X X X X Extracts X X X X ..... been made while making the assessment or (d) a rebate of input tax has 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 aforesaid conditions precedent cannot be countenanced in absence of an order of assessment in writing and in that view of the matter, in respect of deemed assessment, recourse cannot be taken under Section 22 of the VAT Act. Rule 20 under Chapter VI of VAT Rules, 2006 relates to Returns. Rule 20(2)(d), on which reliance is placed by Mr. Sharma was inserted by notification dated 02.06.2011. Subsequently, by notification dated 21.10.2011, the words in 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te to this Hon'ble Court. 3. By a common order dated 20.03.2018, the writ petitions were allowed quashing the re-assessment orders and the penalty imposed. 4. The appellants have filed three writ appeals challenging the aforesaid order. Writ Appeal No.687 of 2018 arises out of the order passed in Writ Petition (T) No.79 of 2017, Writ Appeal No.691 of 2018 arises out of the order passed in Writ Petition (T) No.77 of 2017 and Writ Appeal No.705 of 2018 arises out of the order passed in Writ Petition (T) No.78 of 2017. 5. Initially, the writ appeals were allowed by the judgment dated 24.10.2019, by which the order passed by the learned Single Judge was set aside holding that challenge to the assessment / re-assessment order is not maintainable in view of existence of alternative remedy of appeal under Section 48 of the VAT Act, and accordingly, the assessee was directed to move the Appellate Authority within a period of 45 days. It was observed that on such appeal being filed by the assessee, the Appellate Authority would consider and decide the appeal in accordance with law, on its own merits and without raising objection as to the period of limitation. 6. The assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and accessories in the State of Chhattisgarh. 11. In consequence of the Instruction dated 05.07.2013, Commercial Tax Officer (Enforcement) prepared a report dated 24.02.2014 for the period 2010-11, 2011-12 and 2012-13 in respect of the writ petitioner and proposed to levy tax at the rate of 4% treating the materials as telecommunication cables and accessories. Pursuant thereto, the assessing authority issued notices dated 20.05.2014 for the period 2010-11, 2011-12 and 2012-13 under Sections 19(4), 21(6), 22 and 54 read with Rule 30(1) of Chhattisgarh Value Added Tax Rules, 2006, for short, VAT Rules. 12. It is pleaded that the writ petitioner had raised a preliminary objection against the notices. However, the Commercial Tax Officer, Circle- 5, Raipur, Chhattisgarh issued notice in Form-27 mentioning Section 22(1) of the VAT Act, initiating re-assessment proceeding for the periods 2010-11, 2011-12 and 2012-13. It is pleaded that Form-27 notice is issued under Section 21(4) of the VAT Act for regular assessment and for re-assessment, notice in Form-28 is prescribed. Such notice was objected to by the writ petitioner by filing objection contending, amongst others, that the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed. Accordingly, he submits that the order of the learned Single Judge is liable to be interfered with. He relies on paragraphs 9 and 14 of the decision rendered in the case D. Saibaba Vs. Bar Council of India and Anr, reported in AIR 2003 SC 2502 and in paragraphs 16, 17 and 18 of M.C.D. Vs. Qimat Rai Gupta and Ors ., reported in AIR 2007 SC 2742. 15. Mr. Sumit Nema, learned senior counsel, appearing for the respondents, relies on the order passed by the learned Single Judge and drawing attention of the Court to Section 22 of the VAT Act and more particularly, clauses (a) to (e) therein, contends that there can be no manner of doubt that there has to be an order or assessment to invoke Section 22 of the VAT Act. He relies on the decision of the Hon'ble Supreme Court in the case of Commissioner of Sales Tax, Madhya Pradesh v. Filter Co. reported in [1997] 107 STC 210 (SC) . 16. Mr. Sharma, in reply, contends that in the case of Filter Co. (supra), there was no deemed assessment as is the case in the present cases. 17. We have considered the submissions of learned counsel for the parties and have perused the materials on record. 18. Chapter VI of the VAT Act is unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arter becomes, due; or (ii) in his returns for a year and makes an application for that purpose before the date on which the return for the first quarter of the subsequent year becomes due, the assessment of such dealer for that quarter or year, as the case may be shall be made in accordance with the provisions of sub-section (4) within a period of three months from the date of receipt of the application. (2) Where a registered dealer other than the registered dealer referred to in the proviso to sub-section (1) has furnished,- (i) all the returns for a year and/or; (ii) revised return for any quarter or quarters of such year, in the prescribed manner and within the prescribed time or before the date on which the return for the first quarter of the subsequent year becomes due, (iii) has paid the tax payable according to such returns or revised returns as also interest payable, if any, and (iv) has furnished the statement under clause (b) of sub-section (1) of section 19, within the prescribed time, the returns furnished or revised returns furnished by such dealer for that year shall be accepted and his assessment shall be deemed to have been made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 55 or to any order or judgment of the Civil Court, High Court, Supreme Court; such assessment shall be made within one calendar year :- (i) from the date of the order under Sections 48, 49 and 55 containing any finding or direction, and (ii) from the date of initiation of assessment/reassessment proceeding in pursuance to the order, or judgment of Civil Court, High Court or Supreme Court, and (b) where an order of ex-parte assessment of a registered dealer referred to in clause (a) of sub-section (4) is set-aside and case reopened under Section 36 for making a fresh assessment, such fresh assessment shall be made within a period of six calendar months from the date of setting aside the ex-parte order of assessment or within the period laid down in clause (i) whichever is later; and (c) nothing contained in this sub-section shall apply to proceedings initiated under Section 22 or any proceeding other than assessment or reassessment of tax that may be instituted under any other provisions of this Act. xxx xxx xxx 22. Assessment/reassessment of tax in certain circumstances. -(1) Where an assessment or reassessment of a dealer has been made under this Act o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d or revised returns furnished by such dealer for that year shall be accepted and his assessment shall be deemed to have been made for the purpose of sub-section (1). The proviso therein lays down that the assessment under sub-section (1) of Section 21 of every such registered dealer who is required to furnish audit report under sub-section (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). 21. Section 21(3) of the VAT Act provides that notwithstanding the provisions contained in sub-section (2), the Commissioner shall select for re-assessment 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. Section 21(4)(a) provides that 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingle Judge took the aid of definition of order in Section 2(14) of the Civil Procedure Code, 1908 as also dictionary meaning of the word order in Black s Law Dictionary (Eighth Edition) to come to the conclusion that the words order of assessment employed in Section 22(1) of the VAT Act clearly denotes that there must be a formal adjudication by the assessing officer after taking into account the return and statutory compliances and the documents furnished by the petitioner in contradistinction to Section 21(2) which is a deemed assessment. 25. It was held by the learned Single Judge that the use of the words from the date of order of assessment appearing in Section 22(1) of the VAT Act clearly indicates that the original assessment order has to be in existence prior to exercising the power of re20 assessment. At paragraph 34 of the judgment under assailment, it was observed as follows : 34. Thus, in sum and substance, in order to invoke jurisdiction under Section 22(1) of the VAT Act or to initiate proceedings for reassessment there must be an order of assessment duly passed by the assessing officer and it must be in existence as a condition precedent to invoke Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reassessment under sub-section (1) is attributable to the dealer. In the instant case, it has already been held that there is no order of assessment as the assessing officer did not pass any assessment order and thus, there is failure on the part of the assessing officer to pass the original assessment order. For the reason that the order of reassessment is to beheld without jurisdiction and without authority of law, therefore, the order imposing penalty passed upon reassessment cannot stand and accordingly, it deserves to be quashed. 27. In Filter Co. (Supra), pursuant to an opinion sought under Section 42-B of the MP General Sales Tax Act, 1958, opinion was given by the Commissioner that felt submitted by the assessee, being a woolen fabric, was exempt from tax under the State Act and thus, for Assessment Years 1971-72 to 1977-78, the assessee was not assessed to sales tax. On the basis of the decision in Union of India vs. Gujarat Woollen Felt Mills, reported in (1977) 2 SCC 870, wherein it was held by the Hon ble Supreme Court that felt manufactured by the assessee was liable to excise duty, the opinion given earlier by the Commissioner was cancelled and the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date of order of assessment. It is only in the event of passing an order, period of five calendar years, which is the limitation period, can be reckoned from the date of order of assessment. Invocation of Section 22 is permissible only when assessment of a dealer (a) has been under assessed or has escaped assessment or (b) has been assessed at a lower rate or (c) any wrong deduction has been made while making the assessment or (d) a rebate of input tax has 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 aforesaid conditions precedent cannot be countenanced in absence of an order of assessment in writing and in that view of the matter, in respect of deemed assessment, recourse cannot be taken under Section 22 of the VAT Act. 29. Rule 20 under Chapter VI of VAT Rules, 2006 relates to Returns . Rule 20(2)(d), on which reliance is placed by Mr. Sharma was inserted by notification dated 02.06.2011. Subsequently, by notification dated 21.10.2011, the words in two copies after the words form 17-A i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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