Gauhati High Court
Page No.# 1/6 vs The State Of Assam on 15 July, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/6
GAHC010249432024
2025:GAU-AS:9151
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6430/2024
TIRUPATI METALS
A REGISTERED PARTNERSHIP FIRM, HAVING ITS OFFICE AT BELOW YES
BANK, S.R.C.B. ROAD, FANCY BAZAR, GUWAHATI- 781001.
REP BY SRI SUMIT JALAN, ONE OF ITS PARTNER,
AGE-58 YRS,
S/O- GOURI SHANKAR JALAN,
S.R.C.B. ROAD, FANCY BAZAR, GUWAHATI- 781001.
VERSUS
THE STATE OF ASSAM
REP BY COMMISSIONER AND SECRETARY TO GOVT OF ASSAM, FINANCE
DEPT, DISPUR, GUWAHATI-06, ASSAM
2:THE COMMISSIONER OF STATE TAXES
GOVT OF ASSAM
KAR BHAWAN
DISPUR
GUWAHATI-06
ASSAM
3:THE ASSISTANT COMMISSIONER OF TAXES
DISPUR UNIT A
KAR BHAWAN
DISPUR
GUWAHATI-06
4:THE SUPERINTENDENT OF TAXES
DISPUR UNIT A
KAR BHAWAN
DISPUR
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GUWAHATI-06
5:THE SUPERINTENDENT OF STATE TAXES
(RECOVERY)
BAKIJAI
KAR BHAWAN
DISPUR
GUWAHATI-0
For the Petitioner(s) : Mr. R. Dubey, Advocate
For the Respondent(s) : Mr. B. Gogoi, Standing Counsel
Date of Hearing : 15.07.2025
Date of Judgment : 15.07.2025
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
JUDGMENT AND ORDER (ORAL)
Heard Mr. R. Dubey, the learned counsel appearing on behalf of the
petitioner and Mr. B. Gogoi, the learned Standing counsel appearing on
behalf of the respondents.
2. The petitioner herein has assailed the order of reassessment done in
terms with Section 40(1) of the Assam Value Added Tax Act, 2003
(hereinafter referred to as the "Act of 2003") on the ground that the said
reassessment order is contrary to Section 40(2) of the Act of 2003.
3. The materials on record shows that for the financial year 2007-2008,
the assessment was completed under Section 9(2) of the Central Sales Tax
Act, 1956 read with Section 86 of the Act of 2003 on 25.06.2012. In terms
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with the said Assessment Order, the only amount payable was Rs.250/- and
this was duly informed to the petitioner vide a notice of demand directing
the petitioner to deposit the said amount on 01.07.2012. The petitioner
accordingly deposited the said amount vide a challan on 21.08.2012.
4. The record further reveals that a Show Cause notice was issued on
03.10.2012 intimating the petitioner to show cause in writing as to why the
claim of 6(2) sales under the Central Sales Tax Act should not be rejected
and escaped turnover of Rs.30,97,920/- shall not be assessed to tax @4%
under Section 40 of the Act of 2003. It is pertinent to mention that in the
said Show Cause notice, inadvertently the financial year mentioned as 2009-
2010 which was for the year 2007-2008 and the said aspect is not disputed.
5. It is the further case of the petitioner that the representatives of the
petitioner appeared before the concerned Assessing Officer i.e. the Assistant
Commissioner of Taxes, Guwahati, Unit-A and informed that there was no
escapement of turnover as alleged in the Show Cause notice dated
03.10.2012. The said proceeding thereafter did not proceed as would appear
from the records itself and it was only on 14.11.2022, the Superintendent of
Taxes, Unit-A, Guwahati issued another Show Cause notice referring to the
show cause notice dated 03.10.2012 and to show cause in writing as to why
action should not be taken to complete the assessment under Section 40 of
the Act of 2003.
6. Thereupon, on 22.11.2022, the Assessment Order was passed whereby
it was held that the petitioner was liable to pay an amount of Rs.4,55,155/-
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and in consequence thereof, a Notice of Demand was issued thereby
directing the petitioner to deposit the said amount on or before 21.12.2022.
Pursuant thereto, Bakijai proceedings was also initiated against the
petitioner. It is relevant to take note of that the petitioner subsequent to the
Assessment Order being passed on 22.11.2022 and the Notice of Demand
being issued submitted a reply on 26.11.2022. It is under such
circumstances, the present writ petition has been filed.
7. The record reveals that pursuant to the filing of the instant writ
petition, this Court vide an order dated 07.02.2025 issued notice and stayed
the operation of the Assessment Order dated 22.11.2022; the Notice of
Demand dated 22.11.2022, the certificates dated 07.09.2024 and the
Demand Notice dated 07.09.2024 until further orders.
8. The record reveals that the respondent No.2 filed an affidavit-in-
opposition wherein the impugned Assessment Order dated 22.11.2022 was
defended on the ground that the same was within time in view of the fact
that the Show Cause notice was issued on 03.10.2012 and the petitioner
was given adequate opportunity in that regard.
9. This Court has heard Mr. R. Dubey, the learned counsel appearing on
behalf of the petitioner as well as Mr. B. Gogoi, the learned Standing counsel
appearing on behalf of the respondents.
ANALYSIS AND DETERMINATION:
10. From the pleadings of the parties and the materials on record as well
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as the submissions so made by the learned counsels for the parties, the
issue which requires consideration is as to whether the impugned
Assessment Order is within the period of limitation as stipulated in Section
40(2) of the Act of 2003.
11. Taking into account the said aspect, this Court finds it relevant to
reproduce Sub-Section (2) of Section 40 of the Act of 2003 herein under:
"40(2) No order of assessment and reassessment shall be made under sub-
section (1) after the expiry of eight years from the end of the year in respect of
which or part of which the tax is assessable."
12. From a perusal of the above quoted provision, it would be seen that
no assessment and reassessment shall be made under Sub-Section (1) of
Section 40 of the Act of 2003 after the expiry of 8 years from the end of the
year in respect to which or part of which the tax is assessable. The said
provision does not mention anything about initiation of assessment or
reassessment proceeding rather it stipulates that no order of assessment or
reassessment would be passed after the expiry of 8 years from the end of
the year in respect of which or part of which the tax is assessable. In the
instant case, the assessment is for the financial year 2007-2008 and the
period ends on 31.03.2008. The period within which an assessment or
reassessment can be done in terms with Sub-Section (1) of Section 40 of the
Act of 2003 in respect to the financial year 2007-2008 would have been on
or before 31.03.2016. In the instant case, the Assessment Order was passed
on 22.11.2022 and the same is apparently barred under Sub-Section (2) of
Section 40 of the Act of 2003.
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13. Consequently, this Court therefore, disposes of the instant writ petition
with the following observations and directions:
(i) The impugned Assessment Order for the financial year 2007-2008
dated 22.11.2022 is set aside and quashed.
(ii) The impugned Notice of Demand dated 22.11.2022 for the financial
year 2007-2008 is set aside and quashed.
(iii) The proceedings for recovery so sought to be made vide the Bakijai
proceedings so initiated enclosed as Annexure-21 is set aside and quashed.
(iv) There shall be no order as to costs.
JUDGE
Comparing Assistant
