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TMI Blog2024 (12) TMI 1294X X X X Extracts X X X X X X X X Extracts X X X X ..... nce Rulings constituted under Section 60] is erroneous in so far as it is prejudicial to the interest of the revenue, he may if necessary, stay the operation of such order for such order for such period as he deems fit and after giving the person concerned an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or canceling the assessment or directing a fresh assessment." 11. In terms of the said provisions, the Commissioner is empowered to pass such order as the circumstances of the case justify, including an order enhancing or modifying the assessment, or canceling A the assessment or directing a fresh assessment. A direction issued by the Commissioner to do the fresh assessment would not come within the purview of subsection [3] of Section 40 of the Act. The period of limitation would start running from the date of passing of the order by the Commissioner under Section 64 (2) of the Act directing the fresh assessment. If that to be considered in terms of sub-section [1] of Section 40 of the Act, the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e observations made in Suo-moto Remand Order and as per law. It is consequent to the remand made to the Assessing Authority that the impugned re-assessment order and notice of demand dated 30.05.2018 were issued. 7. The case of the appellant before the learned Single Judge was that, sub-section (1) of Section 40 of the Act of 2003 contemplates that an assessment under Section 38 or re-assessment under Section 39, for an amount of tax due for any prescribed tax period, shall not be made after five years, after the end of the prescribed tax period. It was the case that, in terms of sub-section (3) in computing the period of limitation specified for assessment or re-assessment, as the case may be under the Act, the period taken for disposal of any appeal against an assessment or other proceedings by the Appellate Authority, a Tribunal, a Competent Authority or any revisional proceedings by the Joint Commissioner or the Additional Commissioner or the Commissioner shall not be taken into account in computing such period for assessment or re-assessment, as the case may be. Thus the order of re-assessment dated 30.05.2018, if examined in the light of the aforesaid provisions, the order i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, in the event of pendency of appeal against an assessment or other proceedings before an Appellate Authority, the Tribunal or Competent Court, the period taken for disposal of such an appeal ought to be deducted while computing the period of limitation for assessment or re-assessment, as the case may be. Secondly, the period taken for disposal of any revisional proceedings by the Joint Commissioner, Assistant Commissioner or Commissioner shall not be taken into account in computing the period of limitation. 15. The learned counsel states that, going by the language employed in Section 40(3) of the Act of 2003 which is amended with retrospective effect from 01.04.2005, the period of limitation vis-à-vis the order of re-assessment dated 30.05.2018 in the case of the appellant has to be calculated as under:- Sl.No. Proceedings Period 1. Appeal in VAT.Ap.1826 to 1830/2009-10 80 days 2. Before the Additional Commissioner in SMR/VAT/APP-2/CR-02/2012-13 41 days 3. Before the Commissioner of Commercial Taxes in KVAT/RVN/CR-15/2013-14 150 days 4. Appeal in VAT.Ap.16/2017-18 120 days 391 16. He states, even excluding 391 days taken for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de the order of the Appellate Authority and the Revisional Authority, and remanded the matter to the Assessing Officer for re-verifying the taxable contract receipts for the period of April and May of 2007 and to do the re-assessment. 21. Learned counsel for the appellant had relied upon the proviso to Section 40, which says that the assessment or re-assessment relating to any tax period commencing from 1st day of April 2007 upto the period of date, the 31st March 2012 shall be made within a period of 07 years, after the end of the prescribed tax period, which means, the 07 years shall start running from 01.06.2007 and shall come to an end on 31.05.2014. It is also noted that, Section 40, which was amended in the year 2017 with retrospective effect from 01.04.2005, contemplates that in computing the period of limitation specified for the assessment or reassessment, as the case may be, the period taken for disposal of any appeal against an assessment or other proceedings by the Appellate Authority, a Tribunal or Competent Court or any Revisional Proceedings by Joint Commissioner or the Additional Commissioner or the Commissioner shall not be taken into account. 22. It follows that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... side by the Judge (Revisions), Sales Tax, by order dated March 28, 1955 and the case was remanded to the Sales Tax Officer for fresh assessment. In the view of the Judge (Revisions), it was necessary to determine the ownership of the goods at the time of sales. The Sales Tax Officer then issued a notice calling upon the appellant/company to produce its Books of Account and other relevant documents for the purpose of assessment for the year 1948-49. 26. The appellant/Company contended that, as the original Assessment Order under Section 21 has been set aside by the Judge (Revisions), no proceeding in connection with the assessment was pending and reassessment was barred because more than 03 years had elapsed since the end of the year of the assessment. The Sales Tax Officer rejected the contention of the appellant/Company and insisted that the Books of Account and other documents be produced as directed earlier. The appellant/Company then approached the High Court at Allahabad in a writ petition seeking a restraint order against the Sales Tax Officer, Kanpur from proceeding with the assessment of the appellant/Company for the Assessment Year 1948-49. The Court held that the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirmed the order of the High Court. But, in any case, in view of the position of law laid down by the Hon'ble Supreme Court, which is applicable to the facts of this case, it must be held that the Assessing Officer in the present case could not have held the assessment proceedings beyond the expiry of seven years after excluding the period during which the proceedings were pending before the Appellate Authority/Revisional Authority/Commissioner. 27. In the judgment reported, as the Assessing Authority, Amritsar and another (supra) the Full Bench of Punjab and Haryana High Court was considering the reference made to it on the question whether the jurisdiction of the Commissioner under Section 21(1) of the Punjab General Sales Tax Act, 1948 is subject to period of limitation prescribed under Section 11(A) of the Act. In the said case also, the Commissioner while disposing of the revision under Section 21 of the Act had set aside the Order of Assessment and ordered the Assessing Authority to make a fresh assessment in accordance with law. The court held the proceedings are governed by the period of limitation prescribed in subsections (4), (5) and (6) of Section 11 or Section 11( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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