State of Punjab & Anr. v. M/s Abhishek Industries Ltd

CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE AJAY KUMAR MITTAL Present:- Mr. Piyush Kant Jain, Addl.A.G., Punjab for the appellants. --- ADARSH KUMAR GOEL, J.

This appeal has been preferred by the revenue under Section 68 of the Punjab Value Added Tax Act, 2005 (for short, “the Act”) against the order of the Punjab VAT Tribunal dated

4.10.2010 in Appeal (VAT) No.125 of 2010, Annexure A-4, claiming following substantial questions of law:-

a. Whether the assessment order passed after the expiry of period of limitation is a valid order as the matter of levy of purchase tax on the sugar cane was pending before this Hon’ble High Court in Civil Writ Petition No.20355 of 2005? b. Whether the order passed by the Ld. Tribunal accepting the appeal is sustainable in law?

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The Assessing Authority completed assessment in the case of the respondent-assessee for the assessment year 2004- 05 on 20.4.2009 under the provisions of the Punjab General Sales Tax Act, 1948, against which appeal of the assessee was dismissed but on further appeal, the Tribunal set aside the assessment on the ground that the same was barred by limitation provided under Section 11(3) of the Act. The finding of the Tribunal is as under:-

On behalf of the appellant it had been argued that last date for filing the return for the year 2004-05 had been 30.04.2005. It has been argued that the assessment for the year 2004-05 should have been framed by 30.04.2008 as per section 11(3) of the PGST Act and any assessment framed thereafter is void abinitio and is liable to be set aside on this very issue. State counsel had been asked to check up whether the Commissioner had ever exercised powers u/s 11(10) of the PGST Act and had extended the period of limitation but on instructions from Sh. Manjit Singh, ETO who has brought the file, the State Counsel states that the Commissioner did not exercise powers and had not extended the period in this case. Under these circumstances, assessment framed on 24.02.2009 was beyond the prescribed period of limitation and is void abinitio and liable to be set aside. As such, this appeal is accepted. Orders of the authorities below are set aside.

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We have heard learned counsel for the appellant. It is not disputed that the assessment was barred by limitation but only submission is that in some other writ petition there was stay against recovery. Admittedly, there was no stay in the case of the assessee and there was no bar to make assessment. This being the position, the assessment beyond the prescribed limitation was rightly set aside.