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Judgment
Akil Kureshi, CJ
Learned counsel for the petitioner is permitted to convert this revision petition into a writ petition. Same shall be re-numbered as a writ petition.
Brief facts are as under:
Petitioner is a private limited company and is engaged in the business of trading of raw rubber scrap. The petitioner purchases such raw material from the local dealers and sends the same outside the State by way of branch transfer. The petitioner enjoys registration as a dealer under Tripura Value Added Tax Act, 2004 (hereinafter to be referred to as the VAT Act‟) and Central Sales Tax Act, 1956 (hereinafter to be referred to as the Central Act‟). The petitioner has its branch office at Agartala. In the present petition, the petitioner has challenged an order dated 12.01.2015 passed by the Superintendent of Taxes, Government of Tripura. The said order of assessment pertained to the period of AY, 2005-06 to AY 2008-09. By the said order, he raised following demands of unpaid taxes from the petitioner:
COMPUTATION
Assessment year
2005-2006
2006-2007
2007-2008
Rate of Tax
5%
5%
5%
T.O.D.
14,20,94,759.00
21,71,92,022.00
37,50,74,390.00
Tax payable
71,04,738.00
1,08,59,601.00
1,87,53,720.00
Add. Interest @1.5% per month
1,12,96,533.00
1,53,12,038.00
2,30,67,075.00
Total assessed dues
1,84,01,271.00
2,61,71,639.00
4,18,20,795.00
Assessment year
2008-2009
Rate of Tax
4%
2% (against C‟ Form) (in Rs.)
T.O.D.
35,96,88,168.00
27,41,001.00
Tax payable
1,43,87,527.00
54,820.00
Total tax payable
1,44,42,347.00
Add. Interest @1.5% per month
1,51,64,464.00
Total assessed dues
2,96,06,811.00
The petitioner, upon being served with the order of assessment, filed an application for rectification before the assessing officer. In such rectification application besides raising grounds on merits, the petitioner relied on Section 33 of the VAT Act and contended before the assessing officer that no order of assessment could be passed after a lapse of 5 years from the end of the tax period to which the assessment related. The assessing officer rejected the application for rectification by an order dated 17th of June, 2015 in which he did not consider this contention of the petitioner that the order of assessment was barred by limitation. There upon the present petition has been filed.
The sole contention raised before us by the counsel for the petitioner was that in terms of Section 33 of the VAT Act, the impugned order of assessment passed by the assessing officer was barred by limitation. Even when this aspect was brought to his notice pointedly in the application for rectification, the assessing officer failed to examine the same.
On the other hand, learned counsel Mr. A. Nandi for the Tax Department of the State Government opposed the petition contending that notices for assessment were issued in the year 2009. The petitioner went on taking adjournments. Despite several opportunities being granted the petitioner did not produce the books of accounts or any other material before the assessing officer. He, therefore, passed the order raising substantial tax demands which may be confirmed.
We are conscious that against the order of assessment, statutory appeal and revision would be available. Ordinarily therefore, this Court would not entertain a writ petition directly against the order of assessment. However, in the present case, the petition was admitted earlier. Further, the contention raised by the counsel for the petitioner is one of pure question of law and if she is right in her contention, would go to the very root of the jurisdiction of the assessing officer in framing assessment once it has become time barred. In this context, we have examined the facts on record.
Admitted facts are that the impugned order of assessment passed by the assessing officer covers the period of A.Y. 2005-06 to A.Y. 2008-09. The last of the periods thus ended on 31st March, 2009.
Chapter-V of the VAT Act pertains to returns and assessment. Section 24 of the VAT Act contained in the said chapter enjoins a duty on a registered dealer to furnish periodic returns to the prescribed authority. Section 29 of the VAT Act pertains to self assessment. As per sub-Section (1) of Section 29 subject to the provisions of sub-Section (2), the amount of tax due from a registered dealer or a dealer liable to be registered would be assessed in the manner provided therein.
Section 31, which is also contained in the said Chapter V pertaining to returns and assessment, is for audit assessment. Under circumstances referred to in sub-Section (1) of Section 31, the assessing officer would undertake audit assessment of a return furnished by a dealer. Sub-Sections (2) to (5) of Section 31 provide the procedure for carrying out such audit assessment.
Section 33 of the Act reads as under:
"33. No assessment after five years :- (1) No assessment under section 31 and 32 shall be made after the expiry of five years from the end of the tax period to which the assessment relates;
Provided that in case of offence under this Act for which proceeding for prosecution has been initiated, the limitation as specified in this sub-section shall not apply.
(2) Any assessment made or penalty imposed under this Chapter shall be without prejudice to prosecution for any offence under this Act."
As per sub-Section (1) of Section 33 thus no assessment under Section 31 or 32 shall be made after expiry of 5 years from the end of the tax period to which the assessment relates. In the present case, the petitioner had filed the returns of turnover in the prescribed form which the assessing officer had taken under audit assessment. Sub-Section (1) of Section 33, therefore, applied in the said case and no assessment after expiry of 5 years from the end of the tax period could have been passed. In the present case, we have noticed that the tax period in question ended with 31st of March, 2009. No order of assessment, therefore, could have been passed after 31st of March, 2014. The assessment order passed by the assessing officer on 12.01.2015 was thus clearly hit by the limitation. We are conscious that sub-Section (1) of Section 33 carries a proviso which provides that in case of offence under the said Act for which proceeding for prosecution has been initiated, the limitation specified in the said sub-Section (1) shall not apply. In the present case, no such facts are presented before us. It is not even the case for the respondents that the petitioner was alleged to have committed an offence for which prosecution has been initiated. Applicability of the proviso to sub-Section (1) is thus ruled out. The assessing officer, therefore, could pass the order of assessment latest by 31st March, 2014 which period he missed by a wide margin.
The respondents in their affidavit and the advocate before us in their oral arguments have tried to build a case of no cooperation or response from the petitioner which led to the delay in passing the order. It is argued before us that the petitioner went on asking several adjournments which were granted despite which no documents were produced. Section 33 of the VAT Act prescribes a period of limitation which cannot be extended even though the Department may offer some explanation. In the present case, the period of limitation was inflexible. The order of assessment could be passed only within such period as has been prescribed after which no assessment could be framed.
Under the circumstances, impugned order dated 12.01.2015 is set aside. Petition allowed and disposed of.