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2020 Supreme(All) 876
IN THE HIGH COURT OF ALLAHABAD
SURYA PRAKASH KESARWANI, YOGENDRA KUMAR SRIVASTAVA, JJ.
M/s Ramky Infrastructure Limited – Appellant
Versus
State Of U.P. And 2 Others – Respondents
Writ Tax No. 671 of 2020
Decided on : 15-12-2020
Advocate Appeared:
For the Appellant : Shubham Agrawal
Point of Law: sub-section (7) of Section 29 of the Act, 2008 leaves no manner of doubt that it empowers the Commissioner to grant authorisation and also empowers the Assessing Authority to make assessment or reassessment within a period of eight years after expiry of assessment year to which such assessment or reassessment relates. Sub-section (1) of Section 29 empowers the Assessing Authority to make assessment or reassessment where he has reason to believe that whole or any part of the turnover of a dealer, for any assessment year or part thereof, has escaped assessment to tax or has been under assessed or has been assessed to tax at a rate lower than that at which it is assessable under this Act, or any deductions or exemptions have been wrongly allowed in respect thereof
Headnote:
U.P. VAT Act, 2008 – Section 29 – Uttar Pradesh Tax on Entry of Goods into Local Areas Act, 2007 – Section 9 – Assessment – Reassessment Proceedings – Quashment of the impugned order – Writ petition has been filed praying for the relief certiorari quashing the impugned order passed by the no.3 – Mandamus/ Prohibition restraining the respondent no.2 from initiating any assessment/ reassessment proceedings against the petitioner in pursuance of the order passed by the respondent no.3 – Mandamus directing the respondent authorities to produce/ bring on record the exparte assessment order dated 18.3.16, the order sheet maintained by the assessing authority, report furnished by the assessing authority (respondent no.2) before the Joint Commissioner (Executive), Mirzapur, as recorded in the order dated 30.3.19, registers R-5A, 5B – Impugned order is an authorisation granted by the Additional Commissioner Grade-I, Commercial Tax, Varanasi under Section 29(7) of the U.P. VAT Act, 2008 read with Section 9(4) of the Uttar Pradesh Tax on Entry of Goods into Local Areas Act, 2007 –
Finding of the Court:
Perusal of sub-section (7) of Section 29 of the Act, 2008 leaves no manner of doubt that it empowers the Commissioner to grant authorisation and also empowers the Assessing Authority to make assessment or reassessment within a period of eight years after expiry of assessment year to which such assessment or reassessment relates. – Sub-section (1) of Section 29 empowers the Assessing Authority to make assessment or reassessment where he has reason to believe that whole or any part of the turnover of a dealer, for any assessment year or part thereof, has escaped assessment to tax or has been under assessed or has been assessed to tax at a rate lower than that at which it is assessable under this Act, or any deductions or exemptions have been wrongly allowed in respect thereof. – Thus, where whole of the turnover has escaped assessment on account of not passing an assessment order, the provisions of Section 29(1) of the Act, 2008 can be invoked by the Assessing Authority and the authorisation under sub-section (7) can be granted by the competent authority – It is not incumbent upon the Assessing Authority to make the assessment first and then only to proceed under Section 29(1) for bringing to tax the turnover not assessed. –
Result: Writ Petition Dismissed
JUDGMENT :
1. This case was listed as a fresh case on 09.12.2020 relating to Assessment Year 2012-13 but no one appeared on behalf of the petitioner to press the writ petition. Therefore, the case was adjourned for 14.12.2020. On 14.12.2020, none appeared for the petitioner to press the writ petition even in the revised call. Therefore, the case was adjourned for 15.12.2020.
2. Today also none has appeared for the petitioner to press the writ petition even in the revised call. Sri C.B. Tripathi, learned Special Counsel for the State- respondents is present.
3. This writ petition has been filed praying for the following relief:
“(a)Certiorari quashing the impugned order dated 20.08.2020 passed by the no.3.
(b) Mandamus/ Prohibition restraining the respondent no.2 from initiating any assessment/ reassessment proceedings against the petitioner in pursuance of the order dated 20.08.2020 passed by the respondent no.3.
(c) Mandamus directing the respondent authorities to produce/ bring on record the exparte assessment order dated 18.3.16, the order sheet maintained by the assessing authority, report furnished by the assessing authority (respondent no.2) before the Joint Commissioner (Executive), Mirzapur, as recorded in the order dated 30.3.19, registers R-5A, 5B;”
4. The impugned order dated 20.08.2020 is an authorisation granted by the Additional Commissioner Grade-I, Commercial Tax, Varanasi Zone – II, Varanasi under Section 29(7) of the U.P. VAT Act, 2008 (hereinafter referred to as 'the Act, 2008') read with Section 9(4) of the Uttar Pradesh Tax on Entry of Goods into Local Areas Act, 2007 (hereinafter referred to as 'the Act, 2007').
5. The Additional Commissioner has granted the authorisation on the facts of the present case on the ground that purchases of U.P. iron and steel of Rs.15,51,47,792/-, purchase of Ex-U.P. iron and steel of Rs.7,61,61,195.04 and bitumen of Rs.13,03,70,473/-escaped assessment to entry tax under the Act, 2007 inasmuch as for reasons mentioned in the impugned order, the assessment order of entry tax under Section 9(4) of the Act, 2007 for the Assessment Year 2012-13 could not be passed.
6. Section 29(1)/(7) of the U.P. VAT Act, 2008 (hereinafter referred to as 'the Act, 2008') are reproduced below:
“29. Assessment of tax of turnover escaped from assessment.-(1) If the assessing authority has reason to believe that the whole or any part of the turnover of a dealer, for any assessment year or part thereof, has escaped assessment to tax or has been under assessed or has been assessed to tax at a rate lower than that at which it is assessable under this Act, or any deductions or exemptions have been wrongly allowed in respect thereof, the assessing authority may, after issuing notice to the dealer and making such inquiry as it may consider necessary, assess or re-assess the dealer to tax according to law :
Provided that the tax shall be charged at the rate at which it would have been charged had the turnover not escaped assessment or full assessment as the case may be. Explanation I. -Nothing in this sub-section shall be deemed to prevent the assessing authority from making an assessment to the best of its judgment.
Explanation II. -For the purpose of this section and of section 31, "assessing authority" means the officer or authority who passed the earlier assessment order, if any, and includes the officer or authority having jurisdiction for the time being to assess the dealer.
Explanation III. -Notwithstanding the issuance of notice under this subsection, where an order of assessment or re-assessment is in existence from before the issuance of such notice it shall continue to be effective as such, until varied by an order of assessment or re-assessment made under this section in pursuance of such notice.
(7) Where the Commissioner, on his own or on the basis of reasons recorded by the assessing authority, is satisfied that it is just and expedient so to do, authorises the assessing authority in that behalf, such as
