Uttarakhand High Court
M/S Amway India Enterprises (P) Ltd vs State Of Uttarakhand & Others on 5 October, 2012
Author: Sudhanshu Dhulia
Bench: Sudhanshu Dhulia
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (M/S) No. 2109 of 2012
M/s Amway India Enterprises (P) Ltd. ... Petitioner
Vs
State of Uttarakhand & others ... Respondents
Mr. Bharat Ji Agarwal, Senior Advocate, assisted by Mr. Piyush
Agarwal and Mr. S.K. Posti, Advocates, present for the petitioner.
Mr. Paresh Tripathi, Additional Chief Standing Counsel, present for
the State of Uttarakhand
Hon'ble Sudhanshu Dhulia, J. (Oral)
Supplementary affidavit filed today in the Court by the petitioner is taken on record.
2. The petitioner is a Private Limited Company having its principal place of business at C-1/103, Indira Nagar, Dehradun in the State of Uttarakhand.
3. By means of the present writ petition, the petitioner primarily challenged the order dated 05.09.2012 passed by the Additional Commissioner, Commercial Taxes, Garhwal Zone, Dehradun by which invoking his power under Section 29 (4) of the Uttarakhand Value Added Tax Act, 2005 he has extended the period of limitation (for reassessment) from 3 years to 6 years. The reassessment proceedings pertain to the assessment years 2005-2006, 2006-2007 and 2007-2008.
4. Before this Court, the learned Senior Advocate Mr. Bharat Ji Agarwal has challenged the order dated 05.09.2012 and the proceedings initiated therein primarily on two grounds. For the assessment year 2005-2006, he submits that the proceedings are bad for two reasons. Firstly, according to him, the statutory limitation under Section 32 of Uttarakhand Value Added Tax Act, 2005 read 2 with Section 29 of Uttarakhand Value Added Tax Act, 2005 (for the assessment or re-assessment as the case might be) is only for 3 years and 3 years would count from the end of the assessment year. The Commissioner has got power under Section 29 (4) to increase this limitation up to a period of 6 years after recording reasons therein. All the same, he submits that this order has been passed beyond the period of 6 years and, therefore, in any case it is without jurisdiction. According to the petitioner for the assessment year 2005-2006, the assessment year would end on 31.03.2006, therefore, the external limit, even if the period of 6 years is to be extended would end on 31.03.2012. The order has been passed on 05.09.2012. Therefore, it is without jurisdiction. This submission is though for the assessment year 2005-2006, only.
5. The second limb of argument, which pertains to all the assessment years (i.e. 2005-2006, 2006-2007 and 2007-2008) is that initially for these assessment years the orders were passed for the assessment year 2005-2006 on 31.07.2009, for the assessment year 2006-2007 on 26.02.2010 and for the assessment year 2007-2008 on 08.12.2010. The arguments here would be that though the Statute provides for the reassessment, the same has to be done within the limitations prescribed by the Statute and the reassessment can only be done by the Assessing Authority, if he has "reason to believe" (under Section 29 of the VAT Act) that inter alia has either escaped assessment or under assessed. He submits that earlier Assessing Authority has considered all the material evidence and all the documents, which were submitted by the assessee and it was not the case of the Assessing Authority that the assessee had deliberately withheld any material document from the Assessing Authority. Therefore, the reassessment 3 is merely "a change of opinion", which is not permissible under the law. Regarding this submission of the learned Senior Counsel, which he submits will be applicable for all the assessment years.
6. The learned Additional Chief Standing Counsel for the State says he needs to get instructions from the authority on the second submission and he would be submitting the same in the form of counter affidavit for which he seeks three weeks time to file the same.
7. Time granted.
8. The reassessment proceedings initiated by the Additional Commissioner, Commercial Taxes, Garhwal Zone, Dehradun invoking his power under Section 29 (4) of the Uttarakhand Value Added Tax Act, 2005 for the assessment year 2005-2006 are hereby stayed. No such orders are presently passed for the assessment years 2006- 2007 and 2007-2008, which shall be subject to the counter affidavit to be filed by the respondents.
9. List the matter on 08.11.2012 in the daily cause list.
10. Interim relief, for the assessment years 2006- 2007 and 2007-2008, shall also be considered on the next date fixed. Till the next date of listing the proceedings pertaining to the assessment year 2006-2007 and 2007- 2008 may go on but final order shall not be passed, till the next date of listing.
(Sudhanshu Dhulia, J.) 05.10.2012 Aswal