IMPORTANT POINT
The main legal point established is that re-assessment under Section 40 of the Assam Value Added Tax Act, 2003 requires an existing assessment under Sections 34, 35, 36, or 37, and failure to submit returns within the prescribed time can invalidate self-assessment.

Heard Dr. A Saraf, learned Senior Advocate assisted by Mr. P. Baruah, learned Advocate for the petitioner. Also heard Mr. B. Gogoi, learned Standing Counsel for the Finance & Taxation Department.

2. The challenge made in the writ petition is the order of re-assessment dated 17.03.2018 passed by the Superintendent of Taxes, Naharkatia (Respondent No. 3) for the assessment year 2009 - 2010 under Section 40 of the Assam Value Added Tax Act, 2003 (hereinafter referred to as ‘Act, 2003’).

3. The facts of the case are that on 12.10.2017, the assessing authorities issued notice to the petitioner under Section 40 of the said Act, 2003 stating that they have reason to believe that the turnover of the petitioner’s business assessable to tax for the assessment period from 2009–2010 has escaped assessment as the petitioner has failed to deposit VAT on transmission charge amounting to Rs. 103,05,23,595/- as the same was clearly part of the sale price and therefore proposes to re-assess the petitioner for the aforesaid period under Section 40 of the said Act, 2003.

4. The petitioner vide letter dated 25.10.2017 submitted its reply.

5. Thereafter the assessing authorities by order dated 17.3.2018 re-assessed the petitioner under Section 40 of the Act, 2003 and came to a finding that the petitioner is liable to pay Rs.21,85,79,385.00/- as penalty.

6. Accordingly, notice of demand was issued on 17.3.2018 by the respondent No. 3 to the petitioner for making payment of Rs. 21,85,79,385.00/-. The aforesaid re-assessment order and notice of demand are challenged before this Court.

7. Dr. A. Saraf, learned Senior Counsel for the petitioner submits that though the re-assessment has been shown to have been completed under Section 40 of the Act, 2003 but in fact the same is under audit assessment under Section 36 of the Act, 2003 and since the assessment under Section 36 became barred by limitation, the assessing authority has shown the assessment to have been completed under Section 40 of the Act, 2003. He further submits that Section 39 of the Act, 2003 provides for that no assessment shall be completed after the expiry of five years from the end of the year to which the assessment relates and no assessment under Sections 34, 35, 36 or 37 of the Act, 2003 was completed by the assessing authority. He further submits that the powers under Section 40 is that of re-assessment and the condition precedent for exercise of such re-assessment is that a dealer must have been assessed under Sections 34, 35, 36 or 37 of the Act, 2003 for any year or part thereof. He further submits that in the present case, no assessment was made under Sections 34, 35, 36 and 37 of the Act, 2003 and therefore, the order of re-assessment under Section 40 is totally erroneous and illegal.

8. Mr. B. Gogoi, learned Standing Counsel, Finance & Taxation Department submits that the assessment for the period 2009-2010 was completed under Section 40 of the said Act, 2003 and notice before the assessment was issued to the petitioner in the requisite form. He further submits that the petitioner’s representative had appeared and furnished reply. He further submits that the petitioner has cooperated with the assessing authorities and submitted requisite documents for verification. He further submits that after completion of verification, assessment was completed on 17.03.2018 under Section 40 of the said Act, 2003. He further submits that since the petitioner had filed audited balance sheet and Form 23, self-assessment under Section 35 of the Act was deemed completed before initiation of proceedings under Section 40. He further submits that in the assessment order, inadvertently due to typographical mistake ‘Section 36’ was mentioned instead of ‘Section 40’. In support of the aforesaid submission, he submitted a copy of the instructions received from the Department vide letter dated 28.2.2024 with a copy to the other side. A copy of the aforesaid letter is kept on file and marked as ‘X’.

9. I have