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2016 DIGILAW 1159 (GAU)

BALAJI TEA INDUSTRIES v. STATE OF ASSAM

2016-12-21

HRISHIKESH ROY, NELSON SAILO

body2016
JUDGMENT : HRISHIKESH ROY, J. 1. Heard Ms. N. Hawelia, the learned Counsel appearing for the petitioner. Also heard Mr. B. Gogoi, the learned Standing Counsel for the Finance & Taxation Department. 2. This Revision petition is filed under Section 81 of the Assam Value Added Tax Act, 2003 (hereinafter referred to as "the VAT Act") to challenge the legal validity of the re-assessment order dated 21.12.2011 (Annexure-VII), whereby re-assessment of tax, for tea transported in course of inter-state trade, was made by the Superintendent of Taxes, Jorhat. The concerned consignments were transported out of Assam on stock transfer basis and thus sales tax is not attracted on such transactions provided the goods are supported with valid 'F' Forms, under Section 6A of the Central Sales Tax Act, 1956. 3. Initially the assessment was completed by the departmental authorities by accepting the 'F' Forms tendered by the dealer. But noticing certain defects in the 'F' Form, the re-assessment of tax was ordered, by invoking the provision of Section 40 of the VAT Act. 4. The learned Counsel Ms. N. Hawelia refers to the prescribed format of the Form 'F' under Rule 12(5) of the Central Sales Tax (Registration and Turnover) Rules, 1957 and submits that all the columns in the prescribed form were filled up by the dealer, barring just one information i.e. the date from which the registration of the dealer is valid. But the Counsel submits that since all the other relevant particulars were available, the initial assessment was completed despite the inadvertent minor omission in the Form 'F', presented by the dealer. Moreover, none has questioned the genuineness of the presented document. 5. As regards the legality of the re-assessment proceeding, Ms. Hawelia submits that reasonable opportunity was denied to the dealer as is mandated under Rule 25(b) of the Assam Value Added Tax Rules, 2005 (hereinafter referred to as "the VAT Rules") which prescribes minimum 10 days for the dealer to respond to the notice after receipt of notice. 6. We find from the averments in paragraph-6 of the affidavit-in-opposition filed by the Joint Commissioner of Taxes, Assam that the notice for the re-assessment was issued on 21.11.2011 directing the dealer to make his submission on 28.11.2011. This was perceived to be a reasonable opportunity to invoke the power under Section 40 of the VAT Act by the authority. 7. We find from the averments in paragraph-6 of the affidavit-in-opposition filed by the Joint Commissioner of Taxes, Assam that the notice for the re-assessment was issued on 21.11.2011 directing the dealer to make his submission on 28.11.2011. This was perceived to be a reasonable opportunity to invoke the power under Section 40 of the VAT Act by the authority. 7. The sub-Section 25(1) of the VAT Rules mandates that not less than 10 days' notice be given for production of accounts and documents and submission of objection by the dealer, to the notice under Section 40 of the VAT Act and here it is apparent that only 7 days' time was afforded to the dealer for the re-assessment notice of 21.11.2011. Therefore, it is a clear case of denial of reasonable opportunity for the dealer. 8. Whether re-assessment of tax can be ordered for the minor omission in the 'F' Form when all other details are available, is a matter which should be considered appropriately by the competent authority but for the process of re-assessment, reasonable opportunity must be afforded to the affected dealer. Since this was not afforded to the petitioner, we feel that intervention is called for. 9. Accordingly the re-assessment order passed against the petitioner on 21.11.2011 (Annexure-VII) is set aside and quashed with direction to the authorities to redo the exercise, with due opportunity to the dealer as mandated by the law. It is ordered accordingly. 10. With the above direction, the case is disposed of.