PETRON ENGINEERING CONSTRUCTION LTD. Vs. ASSISTANT COMMISSIONER

JUDGEMENT

(1.) The petitioner has sought for writ of certiorari to quash the proceedings relating to the assessment year 2003-04 dated March 21, 2011 on the ground of limitation and without jurisdiction. The petitioner herein was originally assessed on the files of the respondent under assessment order dated July 12, 2005. In respect of the execution of certain works contract, the petitioner exercised the option under section 7C of the Tamil Nadu General Sales Tax Act, 1959 to have the turnover assessed on a compounded tax rate of 10 per cent. Apart from that, there were other turnovers, which were taken for assessment under the regular chargeable provisions, namely, section 3B of the Tamil Nadu General Sales Tax Act. In respect of the turnover assessed under section 3B, originally a notice of reassessment was issued on March 31, 2006. A perusal of the notice shows that it was confined to the turnover falling for consideration under section 3B alone, which means, the assessment was subjected to part revision alone. The petitioner filed its reply thereon and ultimately on June 20, 2006, an order of reassessment was made on the petitioner. Long thereafter, on March 21, 2011, the petitioner was visited with yet another notice on reopening of the assessment, the relevant portion of which reads as follows:

(2.) In respect of the assessment made under section 7C, reopening of the said turnover for the purposes of reassessment is provided for under section 16AA of the Tamil Nadu General Sales Tax Act. As per the said provisions, where any part of the turnover assessed under section 7C has escaped assessment from tax, the assessing officer could reopen the assessment at any time within the period of five years from the date of order of the final assessment made by the assessing authority. Given the fact that the original assessment in respect of the above turnover under section 7C was made as early as July 12, 2005, going by the time-limit for reopening the said turnover, the same should have been done on or before July 11, 2010. On the abovesaid legal provision, the petitioner contends before this court that the proceedings taken on November 19, 2010 to reopen the said assessment relating to section 7C turnover is patently without jurisdiction.

(3.) On notice, the respondent has filed counter-affidavit stating that the writ petition is not maintainable in law, since the same is as against the notice inviting objection. Referring to the decision of this court in Writ Appeal No. 1025 of 2006 that the jurisdictional issue could very well be urged before the authority concerned and hence, the writ petition is not maintainable, the counter states that the question of granting any relief does not arise. Barring this submission, there is no effective counter to the writ petition. In paragraph 5 of the counter-affidavit, it is stated that the period of assessment lapses on June 19, 2011 and the revised notice was issued on March 21, 2011.