Re-assessment under Section 40 of the Act of 2003 can only be initiated after a prior assessment is made under Sections 34, 35, 36, or 37 of the Act, and the absence of prior assessment renders the proceedings under Section 40 illegal and without jurisdiction.

Heard Dr. A. Saraf, learned Senior Counsel assisted by Mr. N.N. Dutta, learned counsel for the petitioner. Also heard Mr. B. Choudhury, learned Standing Counsel for the Finance & Taxation Department i.e. respondent Nos. 1 to 4.

2. The challenge made in the writ petition is the impugned Order of Reassessment dated 29.03.2018 passed by the Superintendent of Taxes for the assessment year 2009-2010 and the Notice of Demand issued in pursuant thereof as well as the Recovery Notices dated 09.08.2018 and 28.09.2018, issued by the Certificate Officer (Taxation) of Guwahati Recovery.

3. The facts of the case are that on 25.09.2017, the assessing authority issued notice to the petitioner under Section 35 of the Assam Value Added Tax Act, 2003 (hereinafter referred to as the Act of 2003) stating that the petitioner’s turnover escaped assessment for the year 2009-2010 and accordingly, proposes to assess the petitioner’s turnover for the period 2009-2010 to the best of assessing authority judgment under Section 40 of the Act. Thereafter, the assessing authority vide Order dated 29.03.2018 completed the re-assessment under Section 40 of the said Act and came to a finding that the petitioner is liable to pay Rs. 40,50,776.00.

4. Accordingly, Notice of Demand was issued on 31.03.2018 by the respondent authorities. Pursuant to the aforesaid Notice of Demand, recovery notices dated 09.08.2018 and 28.09.2018 were also issued from the Certificate Officer (Taxation) for recovery of the aforesaid amount.

5. The aforesaid re-assessment Order alongwith the Demand Notice and Recovery Notices are under challenge in the writ proceeding.

6. It is the specific case of the petitioner that though the re-assessment has been completed in the purported exercise of power under Section 40 of the Act of 2003 read with Section 174 of the Assam Goods and Service Tax Act, 2017, but Section 40 of the Act of 2003 could not have been invoked inasmuch as, the said powers can be invoked only when the dealer have been assessed under Sections 34, 35, 36 and 37 of the Act of 2003.

7. It is the further case of the petitioner that no assessment whatsoever was completed by the assessing authority under Sections 34, 35, 36 & 37 of the Act of 2003.

8. It is submitted at the bar that the issue involved in this writ proceedings is covered by the Judgment and Order dated 02.04.2024 passed by this Court in Assam Gas Company Ltd Vs. State of Assam & Others in WP(C) No. 5858 of 2018.

9. Heard the submissions made at the bar and I have perused the materials available on record.

10. It appears that as per Rule 17(5)(a), annual return in Form-14 is required to be submitted within two months after the close of the year to which return relates. However, as per Section 17(5)(b) in case of a dealer who is liable to produce a certificate of Audit of Accounts by a Chartered Accountant under Section 62, the annual return is to be submitted within 7 months from the end of the month to which the return relates.

11. In the present case, the petitioner is liable to produce the Certificate of Audit by the Chartered Accountant and therefore, the annual return for the assessment year 2009-2010 is to be submitted before 31.10.2010.

12. Details of submission of monthly returns for the year 2009-2010 under the Act of 2003 on different dates as provided in the writ petition, is extracted hereunder for ready reference:-

13. It appears that the petitioner thereafter submitted its annual return for the year 2009-2010 on 16.12.2010, which is enclosed collectively as Annexure-II (Page 94 – 104 to the writ petition).

Evidently, neither the mon