Page No.# 1/16 vs The State Of Assam And 2 Ors
2025 Latest Caselaw 1149 Gua

Gauhati High Court

Page No.# 1/16 vs The State Of Assam And 2 Ors on 4 June, 2025

                                                              Page No.# 1/16

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
                                                                           Page No.# 2/16


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 Page No.# 3/16

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, Page No.# 4/16

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 been assessed at a rate lower than a rate at which it is Page No.# 5/16

assessable; or has been wrongly allowed any deduction thereof; or being allowed wrongly any credit therein, it would be permissible for the Assessing Officer to proceed to make a re-assessment in the matter.

7. Mr. Saraf, learned counsel submits that no assessment whatsoever as contemplated under the provisions of Section 34, 35, 36 & 37 of the Act having been carried out by the authorities, the pre-conditions requisite for invoking the powers under Section 40 of the Act by the Assessing Officer was clearly absent in the case of the petitioner. Accordingly, he submits that the impugned assessment orders dated 12.05.2023 and the consequential demand notices issued in pursuance thereof were so issued without jurisdiction and accordingly, the same would mandate an interference by this Court.

8. Mr. Saraf, learned counsel by again referring to Section 40 of the Act of 2003 has submitted that for invoking the said provisions, the Assessing Officer has to spell out the 'reason to believe'. However, a perusal of the notice dated 11.04.2023 would reveal that no such reason has been disclosed. He reiterates that the notice dated 11.04.2023 was only for the purpose of an audit assessment under the provisions of Section 36 of the Act of 2003 and for no other purposes.

9. In support of his submissions, Mr. Saraf, learned counsel has relied upon the decisions of the Hon'ble Supreme Court in the cases of (1) Calcutta Discount Company Limited Vs ITO, reported in (1961) 2 SCR 241, (2) Sales Tax Officer, Ganjam & Anr., Vs Uttareswari Rice Mills, reported in (1972) 30 STC 567, and (3) Arvind Kejriwal Vs Directorate of Enforcement, reported in (2025) 2 SCC 248. He has also relied upon the decision of a Co-ordinate Bench of this Court in the case of Assam Gas Company Limited Vs State of Assam and Ors, Judgment and Order dated 02.04.2024 in WP(C) 5858/2018.

10. In the above premises, Mr. Saraf, learned counsel submits that the impugned assessment orders dated 12.05.2023 and the consequential notices of demand all Page No.# 6/16

dated 20.05.2023, issued by the respondent no. 3 with regard to the assessment made in case of the petitioner for the years 2015-16, 2016-17 and 2017-18 would mandate an interference by this Court.

11. Per contra, Mr. B. Gogoi, learned Addl. Advocate General, Assam, appearing for the respondents has submitted that the returns filed by the petitioner for the years 2015-16, 2016-17 and 2017-18 were so submitted under the provisions of Section 35(2) of the Act of 2003 and in terms of the provisions of Section 35(2), the same shall be accepted and such assessment shall be deemed to have been made for the purpose of sub-section (1) of Section 35 of the Act of 2003.

12. Mr. Gogoi, learned counsel, by referring to the notice dated 11.04.2023 has submitted that on account of a typographical error occasioning in the first paragraph of the said notice, Section 36 of the Act of 2003 came to be reflected instead of Section 40 of the Act of 2003. However, in the subject of the said notice, it was reflected that the notices were being so issued under Section 9(2) of the Act of 1956 read with Section 40 of the Act of 2003. Mr. Gogoi submits that a quotation of a wrong provisions shall not take away the jurisdiction of the authorities to carry out its enquiry as mandated under the provisions of the Act of 2003. Mr. Gogoi submits that the assessment of the petitioner for the years in question, having been completed in terms of the provisions of Section 35(2) of the Act of 2003, the re-assessment made therein by invoking the provisions of Section 40 of the Act cannot be denoted to be erroneous. He further submits that the period of limitation of 5 years as provided under provisions of Section 39 of the Act of 2003 would have no application when the re-assessment is being made invoking the provisions of the Section 40 of the Act of 2003.

13. Mr. Gogoi, has further submitted that there existed reasons to believe that the assessment was made by the petitioner for the years 2015-16, 2016-17 and 2017-18, were under assessed as the petitioner had not filed the required 'C' Forms in support Page No.# 7/16

of his claims of inter-state sale to registered dealers. He submits that in the assessment orders dated 12.05.2023, the failure of the petitioner to furnish the 'C' Forms were only factor that was noticed by the Assessing Officer.

14. Mr. Gogoi, learned counsel submits that the decisions of this Court in the case of Assam Gas Company Limited (supra) would have no application to the facts involved in the present proceeding, inasmuch as, in the said case, the assessments and revised assessments were submitted by the dealer after the expiry of the prescribed time and accordingly, this Court, in the said case has concluded that the assessment under Section 35(2) of the Act of 2003 was not completed. He submits that in the present case, there is no averment made of the petitioner not having submitted its returns for the years in question within the time frame prescribed.

15. Mr. Gogoi, learned counsel, in support of his submissions has relied upon the decisions of the Hon'ble Supreme Court in the case of Supreme Paper Mills Limited Vs Assistant Commissioner Commercial Taxes, Calcutta, reported in 2010(31)VST 1 and Commissioner of Sales Tax U.P. Vs Bhagwan Industries Pvt. Ltd., reported in 1973(31) STC 293.

16. In the above premises, Mr. Gogoi, learned counsel, submits that the assessment orders dated 12.05.2023 as well the consequential notices of demand dated 20.05.2023, issued by the respondent no. 3 herein would not mandate any interference from this Court.

17. I have heard the learned counsels appearing for the parties and perused the materials brought on record. The decisions cited at the bar have also been closely perused.

18. Before proceeding to examine the contentions made by the learned counsels appearing for the parties, this Court is of the considered view that the relevant provisions of the Act of 2003, applicable to the issue arising in the present proceeding, need to be noticed: -

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"35. Self assessment: (1) the amount of tax due from a dealer liable to pay tax may be assessed separately for each year during which he is so liable;

Provided that, the Commissioner may, subject to such conditions if any, as may be prescribed, assess the tax due from any dealer during a part of a year and the other provisions of this section shall be construed accordingly.

(2) If a dealer has filed all the tax returns and the annual return or revised returns in the prescribed manner and within the prescribed time and has paid the tax payable according to such returns or revised returns and also interest payable if any, the returns or revised returns so filed shall be accepted and his assessment shall be deemed to have been made for the purpose of subsection (1) subject to adjustment of any arithmetical error apparent on the face of the said return;

Provided that the assessment under this sub-section of every such registered dealer who is required to furnish audit report under section 62 shall be deemed to have been made if such dealer has furnished the audit report along with the annual return."

ii) Section 39 of the ACT, 2003 provides that

"39. No assessment after five years.- no assessment under the foregoing provisions of this Act, shall be made after the expiry of five years from the end of the year to which the assessment relates:

Provided that in case of offence under this Act for which proceedings for prosecution has been initiated, the limitation as specified in this sub-section shall not apply."

iv) Section 40 of the ACT, 2003 provides that

40. Turnover escaping assessment: (1) Where after a dealer is assessed under section 34, 35, 36 or 37 of this Act for any year or part thereof, the Prescribed Authority has reason to believe that the whole or any part of the turnover of the dealer in respect of any period has,-

(a) escaped assessment; or

(b) been under assessed; or

(c) been assessed at a rate lower than the rate at which it is assessable;

or Page No.# 9/16

(d) been wrongly allowed any deduction therefrom; or

(e) been wrongly allowed any credit therein.

The Prescribed Authority may, after giving the dealer a reasonable opportunity of being heard and after making such enquiries as he considers necessary, proceed to assess to the best of his judgment, the amount of tax due from the dealer in respect of such turnover, and the provisions of this Act shall, so far as may be, apply accordingly.

(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 tax is assessable."

19. Section 35 of the Act of 2003 provides for self-assessment. A perusal of the provisions of sub-section (2) of Section 35 of the Act of 2003, would reveal that the assessment shall be deemed to have completed, if the dealer had filed all the tax returns and annual returns or revised returns in the prescribed manner and in the prescribed time and has paid the tax, payable according to such returns or revised returns and also interest payable. The provisions of Section 35(2) further, mandates that the returns so filed shall be accepted and the assessment shall be deemed to have completed for the purpose of sub-section (1) of Section 35.

20. In the case on hand, there is no averment made in the pleadings brought on record by the parties to the proceeding that the self-assessment submitted by the petitioner for the years 2015-16, 2016-17 and 2017-18 was not so done in terms of the provisions of sub-section (2) of Section 35 of the Act of 2003.

21. In such view of the matter, the assessment made for the said years in respect of the petitioner herein, have to be deemed to have been completed in terms of sub- section (1) of Section 35 of the Act of 2003.

22. The provisions of Section 39 of the Act of 2003 mandates that no assessments Page No.# 10/16

under the provisions of Section 35 and 36 shall be permissible to be made after the expiry of 5 years from the end of the year to which the assessment relates. Although, the proviso to Section 39 of the Act of 2003 culls out an exception in cases of offence under the Act, for which proceedings for prosecution has been initiated; wherein, it mandates that the period of limitation shall not apply. However, the proviso would have no application to the issue arising in the present proceedings.

23. A perusal of the materials brought on record would reveal that within the period of limitation as mandated under the provisions of Section 39 of the Act of 2003, the respondent authorities had not initiated any audit assessment under the provisions of Section 36 of the Act of 2003 with regard to the returns submitted by the petitioner under the provisions of sub-section (2) of Section 35 of the Act for the years 2015-16, 2016-17 and 2017-18.

24. Having noticed the above position, this Court would now consider the notice dated 11.04.2023, issued by the respondent no. 3 to the petitioner. The same being relevant, is extracted herein below: -

"Memo No 95 To, Dated: 11-04-2023

M/S Star Cement Meghalaya, Mayur Garden, 2nd Floor, Opp Rajiv Bhawan.

G.S.Road, Guwahati.

CST No. 18539940836

Sub:-Notice Under Section 9(2) Of The CST Act /56 read with sec. 40 of The Assam Value Added Tax Act, 2003.

Whereas the return(s) filed by you for the period from 2016-17&2017-18 under the CST Act has have been selected for Audit assessment under section 9(2) of the CST Act/56 read with section 15 of the Assam Value Added Tax Act, 2003 and it has become necessary to make an assessment as per provision of that section in respect of the above mentioned period; So, you are hereby required to-

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(i) appear in person or through an authorized agent; and

(ii) produce evidence or have it produced in support of the returns;

(iii) produce or cause to be produced accounts, registers, invoices or other documents which you are required to maintain and furnish declarations and certificates you are required to furnish under the Central Sales Tax Act, 1956 or the rules made there under relating to the aforesaid period along with any other relevant evidence on which you may wish to rely in support of the returns filed by you or any objection which you may w wish to raise in relation to these proceedings before the under signed at 11.00 A.M. on 26-04-2023.

Please take notice that in the event of your failure without sufficient cause to comply with this notice, you will render yourself liable to be assessed to the best of my judgment without further notice to you.

(S.Saikia) Superintendent of Taxes, Unit-D, Guwahati"

25. A perusal of the said notice dated 11.04.2023, would go to reveal that the same was projected to have been issued under the provisions of Section 9(2) of the Act of 1956, read with Section 40 of the Act of 2003. However, a perusal of the contents of the notice dated 11.04.2023 would go to reveal that what was contemplated therein was, that the returns filed by the petitioner for the period 2016-17 and 2017-18 were selected for audit assessment, under Section 9(2) of the Central Sales Tax Act of 1956 read with Section 36 of the Assam Value Added Tax Act, 2003. The said notice was so issued for carrying out an audit assessment in terms of the provisions of Section 36 of the Act of 2003; and it is to be seen as to whether such assessment could have been made in the matter. In terms of the provisions of Section 39 of the Act of 2003, the period of limitation for carrying out audit assessment under the provisions of Section 36 of the Act, i.e. for the years2015-16, 2016-17 and 2017-18 had lapsed on 31.03.2021, 31.03.2022 and 31.03.2023 respectively. Accordingly, this Court is of the considered view that the audit assessment sought to be made, invoking the provisions of Section 36 of the Act of 2003, vide issuance of the notice dated 11.04.2023, was clearly barred by limitation.

Page No.# 12/16

26. Having drawn the above conclusions, the contention of Mr. B. Gogoi, learned Addl. Advocate General, Assam, appearing for the State respondents that the notice dated 11.04.2023 was so issued, invoking the powers under Section 40 of the Act of 2003 and the incorporation of Section 36 in the first paragraph of the said notice was on account of a typographical error only, is being examined.

27. A perusal of the provisions of Section 40 of the Act of 2003 would go to reveal that where a dealer has been assessed under Section 34, 35, 36 & 37 of the Act for any year or part thereof, the prescribed authority has reason to believe that the whole or any part of the turnover of the dealer in respect of any period had escaped assessment; or been under assessed; or been assessed at a rate lower than the rate at which it is assessable; or been wrongly allowed any deduction therefrom; or been wrongly allowed any credit therein, the prescribed authority after making such enquiry as he considers necessary and the dealer after being granted opportunity of being heard, proceed to assess to the best of his judgment, the amount of tax due from the dealer in respect of such turnover and the provisions of the Act of 2003, shall so far as may be, apply accordingly.

28. The provisions of sub-section (2) of Section 40 of the Act of 2003, mandates that no order of assessment or re-assessment shall be made under sub-section (1) after expiry of 8 years from the end of the year in respect of which such tax is assessable.

29. As noticed herein above, the returns submitted by the petitioner for the years 2015-16, 2016-17 and 2017-18 were so submitted under the provisions of sub-section (2) of Section 35 and the tax due thereon, in terms of the said returns. Accordingly, the returns filed by the petitioner for the said years have to be deemed to have been completed in terms of the provisions of sub-section (1) of Section 35 of the Act.

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Accordingly, the respondents were within their rights to invoke the provisions of Section 40 of the Act of 2003, inasmuch as, the assessment of the petitioner could be deemed to have been completed under the provisions of Section 35 of the Act of 2003.

30. A perusal of the provisions of Section 40 of the Act of 2003, mandates that where after a dealer is assessed under Section 34, 35, 36 & 37 of this Act for any year or part thereof, the prescribed Authority has 'reason to believe' that the whole or part of the turnover in respect of any period had escaped assessment; or been under assessed; or been assessed at a rate lower than the rate at which it is assessable; or been wrongly allowed any deduction therefrom; or been wrongly allowed any credit therein, may proceed to assess and/or re-assess the returns after providing an opportunity of hearing to the dealer. What is material in the provisions of Section 40 of the said Act of 2003 is the stipulation that the Prescribed Authority has 'reason to believe'.

31. The decisions of the Hon'ble Supreme Court, relied upon by the learned Senior Counsel appearing on behalf of the petitioner, lays down that 'reason to believe' postulates belief and the existence of reasons for that belief. The belief must be held in good faith; it cannot be merely a pretence. The expression does not mean a purely subjective satisfaction of the assessing officer; the forum of decision as to the existence of reasons and the belief is not in the mind of the assessing officer. If, it be asserted that the assessing officer had reason to believe that income had been under- assessed by reason of failure to disclose fully and truly the facts material for assessment, the existence of the belief and the reasons for the belief, but not the sufficiency of the reasons, will be justifiable. The expression therefore predicates that the assessing officer holds the belief induced by the existence of reasons for holding such belief. It contemplates existence of reasons on which the belief is found, and not Page No.# 14/16

merely a belief in the existence or reasons inducing the belief; in other words, the assessing officer must on information at his disposal believe that income has been under-assessed by reason of failure fully and truly to disclose all material facts necessary for assessment. Such a belief, be it said, may not be based on mere suspicion; it must be founded upon information. The Hon'ble Supreme Court further held that a reason cannot exist in vacuum. Somebody must form the belief that reason exists and looking at the manner in which the provision of Section 40 of the Act of 2003 is so couched, this Court is of the view that the assessing officer issuing the notice, should have reasons to believe that the turnover of a dealer has escaped assessment or has been under-assessed. The approach in this matter has to be practical and not pedantic.

32. The decisions of the Hon'ble Supreme Court further lays down that the difference between 'Reason to believe' is not the same as "suspicion" or "doubt" and mere suspension or doubt also cannot be equated to believing. 'Reason to believe' is a higher level of the state of mind. Likewise" knowledge" will be slightly on a higher plane than "reason to believe". A person can be supposed to know where there is a direct appeal to his senses and a person is presumed to have a reason to believe if he has sufficient cause to believe the same. Even in the case where the assessment has already been completed, power under Section 40 of the Act can only be exercised when there exists reason to believe that the turnover has escaped assessment or has been under assessed or some deduction or credit has been wrongly allowed therein. The power under Section 40 of the Act is not unbridled and arbitrary which can be exercised by the Assessing Officer on his own will but, it has to fulfill certain pre- conditions and if the said pre-conditions are not fulfilled, the very initiations of the proceeding under Section 40 of the Act shall be illegal and not sustainable in law. In the present case, not only that no prior assessment was completed, inasmuch as, the Assessing Officer informed that the case of the Petitioner was selected for Audit Assessment under Section 36 of the Act, meaning thereby there was no self-

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assessment under Section 35 of the Act, inasmuch as, Rule 21 of the Rules clearly mandates that if the case has been selected for Audit Assessment, there shall be no self-assessment. Secondly the pre-conditions for invoking the powers under Section 40 of the Act has also not been fulfilled, which will be apparent from the plain reading of the Notice dated 11.04.2023. Accordingly, the assessment contemplated vide issuance of the notice dated 11.04.2023, cannot be deemed to be one so sought to be made under the provisions of Section 40 of the Act of 2003.

33. Having drawn the above conclusions, this Court is of the considered view that in the case on hand, the respondents while invoking the provisions Section 40 of the said Act of 2003, had not incorporated the conditions mandated for its application in the notice dated 11.04.2023. The 'reason to believe' has not been spelt out to the petitioner. The petitioner was only informed of a audit assessment being carried out with regard the returns filed by it for the years in question under Section 36 of the Act of 2003. Accordingly, the notice dated 11.04.2023, in the considered view of this Court, cannot be held to be one so issued for an assessment/re-assessment invoking the provisions of Section 40 of the Act of 2003.

34. In view of the above discussions, the assessment so made under Section 40 of the Act of 2003, vide the orders dated 12.05.2023 for the years 2015-16, 2016-17 and 2017-18 and the consequential demand notices dated 20.05.2023, issued by the respondent no. 3 for the said years, would not be sustainable and accordingly, the same are set aside.

35. Having set aside the said assessment orders as well as the consequential demand notices, the notice dated 11.04.2023 would also not be sustainable and the same would also stand set aside.

36. The setting aside of the notice dated 11.04.2023 along with the assessment order dated 12.05.2023, under Section 40 of the Act of 2003; and the consequential demand notices would not prevent the respondents from invoking the provisions of Page No.# 16/16

Section 40 of the said Act to the extent, it is permissible to be so applied with regard to the returns involved in the present proceedings of the petitioner, by strictly complying with the pre-requisites mandated for invocation of the same.

37. With the above observations and directions, the writ petition stands disposed of.

JUDGE

Comparing Assistant