GAHC010137632023

2025:GAU-AS:5358 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : WP(C)/3646/2023 STAR CEMENT MEGHALAYA LIMITED A COMPANY INCORPORATED UNDER THE PROVISIONS OF COMPANIES ACT, 1956 HAVING ITS OFFICE AT MAYUR GARDEN, 2ND FLOOR, OPP. RAJIV BHAWAN, GS ROAD, GUWAHATI- 781005, ASSAM, REPRESENTED BY SANJIB KUMAR SAHARIA, THE AUTHORISED SIGNATORY OF THE PETITIONER COMPANY.

VERSUS THE STATE OF ASSAM AND 2 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM, DEPARTMENT OF FINANCE AND TAXATION, ASSAM SECRETARIAT, DISPUR, GUWAHATI- 781006.

2:THE COMMISSIONER OF STATE TAXES (EARLIER KNOWN AS THE COMMISSIONER OF TAXES)

ASSAM KAR BHAWAN DISPUR GUWAHATI- 781006.

3:THE SUPERINTENDENT OF TAXES UNIT-D KAR BHAWAN DISPUR GUWAHATI- 781006 Advocate for the Petitioner : DR. ASHOK SARAF, B SARMA,MR. G. DUTTATRAY,MR P K BORA,MR S J SAIKIA,MR. N N DUTTA,MR P BARUAH Advocate for the Respondent : SC, FINANCE AND TAXATION, BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR Date of Hearing : 01.05.2025 Date of Judgment : 04.06.2025 JUDGMENT & ORDER (CAV)

Heard Dr. A. Saraf, learned Senior Counsel along with Mr. P. K. Bora, learned counsel appearing for the petitioner. Also heard Mr. B. Gogoi, learned Addl.

Advocate General appearing for the respondents.

2. The challenge made in the present writ petition, is to the assessment orders dated 12.05.2023, passed under Section 40 of the Assam Value Added Tax Act, 2003 and the consequential notices of demand dated 20.05.2023, issued in pursuance thereof, by the respondent no. 3 for the assessment years 2015-16, 2016-17, 2017-18. 3. The brief facts requisite for adjudication of the issue, arising in the present proceeding is noticed as under: -

The petitioner had submitted its return of turnover under the provisions of Central Sales Tax Act, 1956, for the assessment years 2015-16, 2016-17 and

2017-18 and paid the tax as per the return.

After submission of the said returns, the respondent authorities herein vide a notice bearing No. 95, issued invoking the provisions of Section 9 (2) of the Central Sales Tax Act, 1956 (herein after the Act of 1956) read with Section 40 of the Assam Value Added Tax Act, 2003 (herein after referred as the Act of

2003), informed the petitioner that the returns filed by it for the period 2016- 17 and 2017-18, under the Act of 1956, were selected for audit assessment under Section 9(2) of the Act of 1956 read with the provisions of Section 36 of the Act of 2003 and accordingly, required it to appear in-person or through an authorized agent and produce evidence or have it produced in support of the returns. Further, the petitioner was required to produce or caused to be produced, accounts, registers, invoices and other documents which it is required to maintain and furnish the required declaration and certificates in terms of the provisions of the Act of 1956.

The petitioner, on receipt of the said notice from the Superintendent of Taxes, Unit-D, Guwahati, i.e., the respondent no. 3 herein, submitted a representation dated 19.04.2023 to the said authority and therein, contended that under the provisions of Section 39 of the Act of 2003, no assessment is permissible after expiry of 5 years from the end of the year to which the assessment relates. It was contended that the 5 year period of limitation for the assessment made for the years 2016-2017 and 2017-18 had already expired on 31.03.2022 and 31.03.2023 respectively, and accordingly, no assessment for the said years was permissible to be so initiated against the petitioner in terms of the provisions of Section 39 of the Act of 2003. It was further highlighted in the said representation that the Department had erred in quoting Section 40 of the Act of 2003 for the purpose of computing the period of limitation, inasmuch as, vide the notice in question, a assessment under the provisions of Section 9(2) of the Act of 1956 read with Section 36 of the Act of 2003 was