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 proposed to be so done.

The respondent authorities, in pursuance to issuance of the notice dated

11.04.2023 and on completion of the assessment, proceeded to issue orders dated 12.05.2023, assessing the returns of the petitioner for the years 2015-16, 2016-17 and 2017-18. Basing on the assessment made, demand notices all dated 20.05.2023 came to be issued to the petitioner for the years for which the assessment was so carried out in pursuance to the notice, dated 11.04.2023.

Being aggrieved, the petitioner has instituted the present proceeding assailing the assessments so made vide the orders dated 12.05.2023; and the consequential demand notices dated 20.05.2023.

4.

Dr. A. Saraf, learned Senior Counsel for the petitioner submits that the respondent authorities had erroneously quoted the provisions of Section 40 of the Act of 2003 in the notice dated 11.04.2023. He submits that a perusal of the said notice would go to reveal that what was contemplated therein was an audit assessment under the provisions of Section 36 of the Act of 2003.

5.

By referring to the provisions of Section 39 of the Act of 2003, Mr. Saraf has submitted that the limitation having already expired for the assessment so contemplated to be made vide the notice dated 11.04.2023, the respondent authorities had quoted the provision of Section 40 only with the view to coverup the expiry of the period of limitation involved in the matter. Mr. Saraf has further submitted that Section 39 of the Act of 2003 mandates that no assessment under the provisions of the Act shall be made after expiry of 5 years from the end of the year to which the assessment so relates. He further submits that the proviso to Section 39 would not stand attracted to the case of the petitioner, inasmuch as, no prosecution has been initiated against it in the matter.

6.

Mr. A. Saraf, by referring to the provisions of Section 40 of the Act of 2003 has submitted that the pre-conditions requisite for exercise of power under Section 40 of the Act of 2003 is that a dealer should have been assessed either under Section 34, 35, 36 & 37 of the Act and thereafter, if the Assessing Officer has a reason to believe that the whole or any part of the turnover had escaped assessment; or has been under assessed; or has