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Case Law Details

Case Name : S.S. Traders Versus The State of Maharashtra (Maharashtra Sales Tax Tribunal)
Appeal Number : VAT Second Appeal Nos. 342 and 343 of 2017 dated 09/12/2022 (Maharashtra Sales Tax Tribunal, Mumbai)
Date of Judgement/Order :
Related Assessment Year :

Antedated Assessment Orders held as non est and beyond the limitation period provided u/s 23 of the Maharashtra Value Added Tax Act, 2002

S.S. Traders Versus The State of Maharashtra (Maharashtra Sales Tax Tribunal)

BENCH-I
Office of the Maharashtra Sales Tax Tribunal,
Vikrikar Bhavan,7th floor, Mazgaon,
Mumbai 400010

Appeal No. VAT SA 342-343/2017

Application

To,

M/S. M/S. S S Traders

MUMBAI

ADV/CA:

Sir,

I forward herewith a true copy of the judgment passed by the tribunal in the above case.

Yours faithfully,

Assistant

Assistant Registrar,
Maharashtra Sales Tax Tribunal,
Mumbai

1) Copy for information alongwith copy/copies of Judgment forwarded to the Deputy Commissioner of Sales Tax (Legal), Maharashtra State , Mumbai.

2) Deputy Commissioner of Sales Tax (Appeal)………….. /Assistant Commisioner of Sales Tax(Appeal) …………………. / No. DC (Appl.) ……………. / AC (Appl.)……………………………………

(Per Shri. S. V. Mane, President)

The present appeals are preferred by the Appellant for the Period 2006-07 and 2007-08 under the Maharashtra Value Added Tax Act, 2002 (MVAT Act) against the Orders passed by the Deputy Commissioner of Sales Tax, (Appeals-VI), Mumbai (First Appellate Authority). The First Appellate Authority has rejected the said appeals with reason that the appeals were not filed within the prescribed time limitation as per the MVAT Act.

2. Shri. Ratan Samal, learned Advocate appeared on behalf of the Appellant and Shri. Mahesh Kale, learned. Assistant Commissioner of State tax (Legal) appeared on behalf of the Respondent.

FACTS OF THE CASE

3. The Appellant is a registered dealer under the MVAT Act involved in the business activity of trading in iron, steel and other products such as ball bearings, etc. The Appellant claimed that it has filed all its returns and has discharged tax liability due as per such returns. Since the Appellant is required to file quarterly returns, such returns for all four quarters were filed along with the Audit Report as required u/s 61 of the MVAT Act. The Appellant had claimed input tax credit on tax paid purchases for the Periods 2006-07 and 2007­08. After adjustment of the input tax credit, the balance tax due as per returns has been paid by the Appellant for both the Periods.

4. The assessments ,;of the appellant for.. the Period 2006-07 and, 2007-08 were, completed u/s 23(3) of the MVAT Act on best judgement by the Sales Tax Officer (C-929), Issue eased Audit, Mumbai (Assessing Officer) by passing orders dated 20/03/2014 and 30/08/2014 respectively. The Assessment/ order dated 20/03/2014 passed for the year 2006-07 was resulted in to total demand, of Rs.23,13,125/- which comprising of tax  demand of Rs. 10,80,728/-,interest of Rs.12,27,397/- and penalty of Rs. 5000/­. Similarly, the Assessment Order dated 30/08/2014 passed by for the year 2007-08 was resulted in to total demand of Rs. 27,53,470/- comprising tax demand of Rs. 13,92,046/- and interest demand of Rs. 13,61,424/-.

5. Being Aggrieved with the said assessment orders, the Appellant  has filed appeals before the Deputy Commissioner of Sales Tax (A -al-VI), Mumbai on 29/05/2015. In the Statement of Facts submitted before the First Appellate authority, it was contended that the assessment orders dated 20/03/2014 for the period 2006-07 and dated 30/08/2014 for the Period 2007-08 were not at all served on the Appellant. When the recovery proceedings were initiated against the Appellant, then he has made an application to the Assessing Officer for issuing certified copies of both the assessment orders. Accordingly, the certified copies of the assessment orders were received by the Appellant on 29/05/2015. The appeals were filed on 29/05/2015.

6. It was contended by the Appellant before the First Appellate Authority that the assessment orders were received by him on 29/05/2015 and before that date no such assessment orders were served to him. It was further, contended that the date 29/05/2015 is to be treated as the actual date of service of assessment orders. It is required to file ‘an’ appeal within 60 days from the service of the assessment Order against which appeal is to be made As the date of service of orders were on 29/05/2015 and the appeals were filed on the same day i.e 29/05/2015, the filling of ‘appeals before the First Appellate Authority was well within the time of limitation. It is tended by the ‘Appellant that the first Appellate, Authority had not considered the submission made by the Appellant in this regard. The first Appellate Authority, though after verification of the assessment record pertains to the periods in question, had not considered the submission made before him and not considered the fact that there was no delay in filling of appeal and rejected the appeals filed before him by orders dated 24/01/2017. Being aggrieved with the appeal orders passed by the First Appellate authority the Appellant has filed the present set of Second Appeals before this Tribunal.

ARGUMENTS ON BEHALF OF THE APPELLANT

7. Ratan Samal, learned Advocate appeared on behalf of the Appellant for the Appellant submitted that, during the course of proceedings in first appeal, it was argued before the First Appellate Authority that the Assessment Orders were never served to the Appellant up to 29/05/2015. The said assessment orders and related demand notices are received by the Appellant only when the Appellant made an application subsequent to initiation of recovery proceedings initiated by the Assessing Officer. The Advocate for the Appellant contended that recovery proceedings were issued after 1 year, i.e., on 20/05/2015 even though it has been claimed that the Assessment Orders were passed on 20/03/2014 and 30/08/2014 for the period 2006-07 and 2007-08. This would mean that the Assessment Orders were not really passed on such dates because in case the Orders were passed on the dates being claimed by the Assessing Officer, then recovery proceedings would have been issued at a much earlier date. However, since the Assessment Orders were neither .passed on the claimed dates nor served to the Appellant, they were antedated in order to revive time-barred assessment proceedings.

8. Shri Ratan Samal, learned Advocate for the Appellant contended that before’ the First. Appellate Authority, a detailed statement of Facts and Grounds of Appeal was raised. In the Statement of Facts, it was contended-that Order dated 20/03/2014 for the Period 2006-07 and 30/08/2014 for the Period 2007-08 was not at all served on the Appellant. When bank attachment and coercive recovery proceedings were initiated, then he has made an application to the Assessing Officer to issue Certified copies of the Orders. Accordingly, Order was issued on 29/05/2015. Therefore, the present appeals were filed on 29/05/2015 itself, which was within the time limit. However, the First Appellate Authority has chosen to ignore such factual aspects and the submission made by the Appellant were side-tracked and had observed that there is a delay of 212 days. Although in the Appeal Orders he has mentioned that Appellant has claimed that the orders passed by the Assessing Officer are antedated and was not served on the Appellant, and based on request of the Appellant the certified copies were issued to him, then it is the duty of the First Appellate Authority to consider the facts on the record. In fact, the learned Advocate has claimed that the Assessment records were called by the First Appellate Authority but there is no evidence in respect of service of Order available.

9. Shri. Samal, the learned Advocate further contended that he took inspection of records, both at the stage of first appeal as well as before us. There is no proof available in respect of service of assessment orders prior to 29/05/2015. Hence, he contended that First Appellate Authority erred in saying that there is a delay in making the appeals. In fact, it is the duty of the First Appellate Authority, he, Should have have declared as null and void and antedated and would have been declared as time-barred assessment when he had verified the assessment record. He argued that it appears that to safeguard the Assessing Officer, the first Appellate Authority has observed in such manner and rejected the appeals. Therefore, the learned Advocate requested that the present appeal should be considered on the ground of antedated, non-service of the Order and time-barred issue. He has detailly narrated the facts on record.

10. The Advocate for the Appellant contended that during Stay proceedings before this Tribunal, the Departmental Representatives were granted several opportunities to produce the evidence of service of the impugned Assessment orders on the Appellant but no such evidence was produced. It was further stated by Shri. Samal that since the Departmental Representatives were not able to bring anything on record which showed that the Assessment Orders were served on the Appellant, this Tribunal granted an absolute Stay vide Order dated 06/11/2017 with an observation as under:

“2. Stay application is taken for hearing today. The main contention of the appellant is that the assessment order is not passed within the prescribed period of limitation. We have heard Shri Ratan Samal, learned Advocate on behalf of the appellant. He contended that, in order to prove that the order is passed within the prescribed period of limitation, it is required to be proved by the Department that the Assessment order was served on the appellant. He brought to our notice that, on three different occasions’ the Department was directed to produce proof of service of assessment order on the appellant’. Within reasonable time from the date of Assessment order. In spite of giving sufficient opportunity to the Department, the Department has failed, to produced such proof.

3. In such circumstances, the appear will have to be admitted without passing any order of part payment, since the validity of Assessment order itself is in challenge. We therefore, pass the following order:

ORDER

Ad- interim relied granted in favour of the appellant shall continue till final disposal of the appeal.”

11. Shri Ratan Samal brought our attention to the provision of sub- section (3) of Section 23 and sub- section (3A) of Section 23 of MVAT Act, 2002 which read as under:

“23. Assessment.-

(1)…..

(2)…….

(3) Where a registered dealer has not filed a return in respect of any period by the prescribed date, then the Commissioner may, serve on the dealer a notice requiring him to attend on a date and at a place specified therein and after giving the dealer a reasonable opportunity of being heard, proceed to assess, to the best of his judgment, the amount of tax due from him

Provided that, no order of assessment under this sub- section shall be made after the expiry of five years from the end of the year containing the said period.

(3A) Notwithstanding anything contained in sub- section (2) or sub- section (3), an order of assessment, in respect of any period ending on or before the 31st March, 2008 may be made under the respective provisions within a period of seven years, from in the end of the year containing said period.

Provided that, in respect at the period commencing on or after the 1st April 2005 and ending on or before the 31st March, 2006, an order 0f assessment under the respective provisions may be made on or before the 30 June, 2013.”

12. The learned Advocate further submitted that as per sub-section (3A) of Section 23 of the MVAT Act, 2002, the Assessment proceedings were supposed to be completed by 30th March, 2014 for the Period 2006-07 and by 30th March, 2015 for the Period 2007-08. It was further contended that Rule 87 of the MVAT Rules, 2005 stipulates the mechanism of service of Orders and Notices and as per this Rule, Orders are required to be served by hand delivery or by post or courier or by sending a scanned copy or an electronically generated and digitally signed copy. In case, service through all of the above modes are not possible, then Rule 87 prescribes that service must be made by affixing the Order or Notice at the regular place of business.

13. The Advocate for the Appellant stated that since the Assessment Orders for 2006-07 and 2007-08 were passed physically, it had to be served by hand delivery. However, no acknowledgement has been brought on record by the Departmental Representative till date to show that service of the Assessment Orders had taken place, despite several opportunities having been given to them during the appeal hearings before this Tribunal. Shri. Samal further stated that in fact, on 30th July 2021 he had also prayed before this Tribunal that the Departmental Representative may be directed to either produce an acknowledgement of service or in alternate make a statement in this regard. But, none of the above seem to have been complied till from the Department.

14. It was argued by the learned Advocate that merely in order to come out from the clutches of limitation, the Assessing Officer had antedated the Assessment Orders and therefore the Departmental Representative could not bring any documentary evidence on record to show that actual service of the Assessment Orders for 2006-07 and 2007-08 had taken place on the dates being claimed by the Assessing Officer. Mr. Samal contended that he had inspected the records which clearly show the DBA (Daily Book of Assessment) is maintained and in the entry of the present Order, blank space was left for the concerned month of March 2014 was left which was subsequently filled with lots of erasing and rewriting which clearly showed that the dates were manipulated.

15. Shri. Samal, learned Advocate has relied on various judgments of the Hon’ble Supreme Court and Hon’ble High Courts and our own Tribunal. Shri. Samal has relied on Hon’ble Supreme Court of India’s judgment in State of A.P. vs. M. Ramaishtaiah, (1994) 93 STC 406 wherein it was held as under:

“An assessment order passed in September, 1969, was sought to be revised by the Deputy Commissioner under section 20(2) of the Andhra Pradesh General Sales Tax Act, 1957. He passed an order prejudicial to the assessee. The order was said to have been made on January 6, 1973, but it was served after the expiry of four years from the date of the assessment order, on the assessee on November 21, 173, 10 and a half months later. There was no explanation by the Deputy Commissioner why the service of the order was so delayed:

Held that, in the absence of any explanation whatsoever, the court must presume that the order was not made on the date it purported to have been made and that it could have been made after the expiry of four years prescribed for passing such an order in revision. The order was bad.”

16. In the matter of Ankita Impex vs. State of Maharashtra, MVXA/1/2014 dated 23rd January 2015, it was held by Hon’ble Bombay High Court that, “one of the modes of Rule 87 of the MVAT Rules has to be adapted by the authorities in servicing the notice or orders and in the opinion that the order or notice cannot be served by any of the modes prescribed under Rule 87 then he can resort to other modes prescribed and which inter alia is affixing of such notice on the premise or office of the dealer. The authorities including the Tribunal ought to have been satisfied that the notice could not be Tax Officer failed to show the order on 16th January 2001 if he had really passed the said order. Again, despite writing letter on 23rd January 2001 and requesting copies of the Assessment Order, the same were neither shown to him nor given to him. Not only that, no counter affidavit has been filed yet against the averments made by the Appellant in that behalf on 19th March, 2001. There is  absolutely no doubt in our mind that the orders are antedated. This is highly objectionable. It is unfortunate that it has been repeatedly noticed by the Tribunal that there is a tendency amongst some of the officers to pass such antedated order in order to avoid being cut in the clutches of the law of limitation. Such conduct on the part of the responsible officer of the Government cannot be turned down  simply as negligence but it amounts to fabricating Government records to save his own skin and it A criminal in nature. The commissioner of sales tax is expected took into such; Mischievous action taken on the part of the Assessing Officers.”

19. Shri. Samal then, relied on the judgment of Hon’ble Allahabad  High  Court in Rohtash Sweets Fast Food vs. Deputy Commissioner of Commercial Tax, (2019) 65 GSTR 107 (All.)

wherein it was held as under:

“Allowing the petition:

1. That the case was clearly on facts with regard to the expiry of limitations for making the assessment, i.e., March 31, 2017 under Section 29(6) of the UP VAT Act and also the fact that the same was served on September 13, 2017 after about ten and a half month of hearing of the case. Thus, there being no dispute on the facts of the argument that the court could not go into those questions was rejected.

2. That, there being no explanation by the Respondent as to. why the modes of service of the order was prescribed under Rule 72 of the UP Value Added Tax Rules and the circulars. were not observed for servicing of the Order by the Department: The irresistible conclusion was that the order was antedated: Therefore, the Order of Assessment passed by the Deputy Commissioner dated October 28, 2016 served; on September 13; 2017:after about ten and half months of hearing of the case was. to be quashed as being beyond the prescribed period of limitation provided under Section 29(6) of the UP Value Added Tax Act.”

20. Furthermore, Shri, Samal relied on the judgment of Hon’ble Andhra Pradesh High Court in Usho Daya Enterprises Ltd. vs. Commissioner of Commercial Tax, Hyderabad, wherein it was held,

“There was time lag of more than 8 months between the purported date on which it was served on the dealer. The reasons for such inordinate delay was unexplained. Therefore, it had to be presumed that the order was not passed on the date on which it was purportedly passed and the revision was done beyond the period of limitation prescribed by section 20(1) of the Act.”

21. Shri. Samal brought our attention to the judgment of Hon’ble Karnataka High Court in Shree Sheele Pvt. Ltd. v. Additional Commissioner of Commercial Tax, (2015) 85 VST 274 (Kale.) wherein it was held,“the original record showed that the order dated February 10, 2010 was dispatched for service on the dealer on September 15, 2011 and served on the dealer on September 21, 2011. In these circumstances, the order dated February 10, 2010 which referred to the reply of the dealer, filed on April 08, 2010 could not but be an antedated order passed only to circumvent the limitation of four years provided under sub- section (4) of Section 22A of the Act. The order dated February 10, 2010 deserve to be quashed as it has been apparently passed after receipt of the reply of the dealer dated April 08, 2010 which would be beyond the limitation of four years from the passing of the order sought to be revised. The Court has levied explanatory costs of Rs. 50,000/- on the Department to be recovered from the officials who have passed the antedated o flier after holding a due inquiry in accordance with law.”

22. In advancing his arguments , Shri. Samal has contended that the Assessment Order is a non- speaking order and he has also relied  on various judgments for this proposition. Further, for the issue of time-barred assessment while referring to  Section 23, he has relied relied upon various judgments including the judgment in the matter of CEAT Ltd. vs. State of Maharashtra, Second Appeal No. 32 of 2014 dated 07/07/2017, wherein the assessment had been declared as time barred on similar facts and circumstances as of the present case.

23. The learned Advocate for the Appellant also submitted that it has a strong prima facie case on merits of the matter since the input tax credit of the Appellant was disallowed without granting sufficient reasons in the impugned Assessment Orders. It was argued that the Appellant had exercised its rights under the Right to

Information (RTI) Act, 2005 and had filed RTI applications before the relevant authorities in order to obtain information about its vendors/ suppliers. The information provided by the relevant RTI authorities provided information in respect of the existence of the vendors/ suppliers and that they had duly discharged all their tax liabilities by filing the requisite returns. Based on such responses received from the relevant RTI authorities, the Advocate for the Appellant contended that it was fully entitled to input tax credit as claimed in its returns. He also stated that the allegations made in the Assessment Orders that the vendors/ suppliers of the Appellant were declared as non-genuine were incorrect since the RTI responses clearly showed that such vendors/ suppliers were in existence during the impugned tax periods and had also filed their returns and paid taxes to the Government Treasury. Therefore, the allegations in the Assessment Orders Were incorrect even on the merits of the matter.

Shri. Sarnal further contended that since the matter is on jurisdictional issue, i.e., improper exercise of jurisdiction by passing of Assessment order after the expiry of limitation period and making the order antedated goes to the root of the matter. This Hon’ble Tribunal can directly ‘decide on the jurisdictional issue although First Appellate Authority has not dealt-purposely With that issue. For that purpose, the learned Advocate brought to our notice the recent judgment of Hon’ble Bombay High Court in State of Maharashtra vs. MM Sales Corporation, MVXA/3/2021 dated 08th September 2022, wherein the scope of the power of Appellate Authorities including the Appellate Tribunal was discussed and principles were laid down. Shri. Samal contended that, in the said judgment, principles were laid down wherein the Appellate Authority or the Appellate Tribunal can step into the shoes of the Assessing Officer and decide the matter. Therefore, he requested that although the Fir’st Appellate Authority has purposely not decided the issue at hand and has gone on hyper technicality ignoring the material facts, this Tribunal can sidetrack those aspects and decide the matter on the issue of jurisdiction. Shri. Samal contended that, since all the returns and Audit Reports are filed before the prescribed due date which is an undisputed fact on record and therefore, the Order may be treated as antedated and hit by limitation prescribed u/s 23(3A) of MVAT Act, 2002 and has prayed for quashing of the Assessment Orders for both Periods.

ARGUMENTS ON BEHALF OF THE REVENUE

25. Shri Mahesh Kale, learned Assistant Commissioner of State Tax (Legal) appeared as Departmental Representative (DR) has made six alternate submissions during the appeal hearing proceedings. primarily, learned DR has contended that the First Appellate Authority has not adjudicated upon the merits of the matter, and has rejected the first appeals solely on the ground of delay. Therefore, it was prayed that the matter may be remanded back to the First Appellate Authority for consideration on merits.

26. The learned DR submitted that the Assessment Orders were properly served on the Appellant as per the provisions of the MVAT Act and Rules. In his support, he relied on Rule 26(1) of the MVAT Rules, 2005 which reads as under:

“26. Supply of copy of order of assessment.-

(1) A certified copy of an order of assessment shall be furnished to the assessee free of charge along with the notice issued in accordance with sub- section (4) of section 32.”

27. Shri. Mahesh Kale learned DR argued that since the certified copy of the Assessment Orders were served on the Appellant on 29/05/2015 the statutory condition of service was satisfied and therefore, the argument of the Appellant that the Assessment Orders are hit by limitation should not be accepted. In order to fortify this submissions, the learned DR Shri. Mahesh Kale reiterated sub­sections (3) and (3A) of Section 23 of the MVAT Act, 2002 and emphasized that the statutory stipulations require that assessment has to be “made” within a period of seven (7) years from the end of the year containing the said period. As per the learned DR, this meant that assessment proceedings were only required to be completed with an Order and there was no specific requirement to serve such Order. It was further submitted that proper entries in respect of passing the Assessment Orders were made in the register maintained by the Sales Tax Department and thus, the requirement of assessment to be,thade within seven years as per Section 23(3A) of MVAT Act, 200 was satisfied.

28. Shri. Kale learned DR in support of his above arguments, relied on Hon’ble Kildhra Pradesh High Court’s Judgment in K.U. Srinivasa Rao Vs. ommissioner of Wealth Tax ,(1985) 152 ITR 128 (AP) wherein it was held as under:

“4. The Ward to be noticed is ‘made. It must be remembered that an order of assessment is not an administrative order but a quasi-judicial order. It is true that an order of assessment may not have been made in the presence of the assessee and that it requires to be communicated, but still, its kept in mind while interpreting the word ‘made, the Act merely requires that an order of assessment shall be made within the prescribed period. It does not further require that it should be communicated within the period prescribed.”

29. Similarly, Shri. Kale learned DR also placed reliance on a judgment of Hon’ble Calcutta High Court in India Ferro Alloy Industry Pvt. Ltd. v. Commissioner of Income Tax, (1993) 202 ITR 671 (Cal.) wherein it was held as under:

“14. In our opinion, what is required for completion of the assessment is the determination of the tax liability and issue of demand notice but certainly not the service of the same on the assessee.”

On the basis of the aforesaid judgments, the learned DR contended that since the Assessment Order for the Period 2006-07 was passed on 20/03/2014 and for the Period 2007-08 was passed on 30/08/2014, the statutory requirement of assessment being “made” was already satisfied and even though the Assessment Orders were served on the Appellant on 29/05/2015, it could not be said to have been made beyond the limitation period.

30. Shri. Mahesh Ka e learned DR brought, to our notice that one of the judgments relied by the Advocate for the Appellant has relied on Hon’ble Bombay High Court’s judgment in Greatship India supra) which has been overturned by the judgement of Hon’ble Supreme Court of Indla in State of Maharashtra v. Greatship (India) Ltd., Civil Appeal-No.-4956 ‘of 2022 dated 20th September 2022 and therefore the Appellant’s reliance on the said judgment was misplaced.

31. Shri. Mahesh Kale, learned DR finally submitted that considering the ratio laid down by the judgements cited from the Revenue and as the First Appellate Authority has not adjudicated upon the merits of the matter hence, the matter may be remanded back to the First Appellate Authority for consideration on merits.

CONSIDERATION AND OBSERVATIONS

32. We have carefully considered the rival submissions. We have also perused the record and the Written submissions submitted by both the parties, also the judgments cited by both the parties. It is the fact on record that an Order dated 20th March, 2014 for the Period 2006-07 and Order dated 30th August, 2014 for the Period 2007-08 were passed by the Sales Tax Officer (C-929), Issue Based Audit Branch, Mumbai. However, there is no evidence produced by the Revenue in respect of the service effected to the Appellant. An Order of attachment by way of Notice in Form 318 dated 20th May, 2015 was issued to the Manager of Khapol Co-operative Bank, Matunga Branch attaching, bank account no. 301 maintained by the Appellant. On receiving information from the Branch, the Appellant has made an application for certified copies of the Assessment Orders with a request to issue the Assessment Orders since these orders were not served on him. The Appellant has brought on record letter dated 29th May, 2015 and on the same, date the Assessing Officer had issued a certified copy.

33. The Appeal order rejecting the appeal by the Deputy Commissioner of Sates, Tax Appeals VI dated 24 th January 2019 shows contended that the Assessing Officer has served on him an antedated Order and hence, the present appeal is to be considered accordingly. However, with a non- speaking Order, the Appellate Authority has passed an Order rejecting the Appellant’s prayer with an observation that Appellant has filed appeal late by 212 days and the Appellant has not submitted any convincing and sufficient reason. Hence, the appeal was rejected.

34. During arguments before this Tribunal, and submissions made by Shri. Samal from the Appellant and by Shri. Kale from the Revenue, it is clearly seen that the Orders were served for the first time on 29/05/2015. Even Shri. Kale in his submissions has admitted the fact that Order was first time served on 29/05/2015. However, Shri. Kale has contended that the assessment orders were passed on 20/03/2014 and on 30/08/2014 for period 2006-07 and for period 2007-08 respectively. The daily book of assessment maintained also shows entry of such Orders. Per contra Shri. Samal on behalf of the Appellant has submitted that a mandatory rule of service of notice and order is provided under the MVAT Act and Rules. He has relied on Rule 87 and submitted that, one of the modes required under Rule 87 is needed to be adapted by the Assessing Officer which he has failed to do so. Hence, it is to be presumed that the dates shown in the Assessment Orders is wrong and on the said date he has not passed the Order and blank DBA entries were left out to fill the gap for the future Orders to be passed. In, support of his contention Shri. Samal has:relied upon,the judgments of Hon’ble Bombay High Court in Greatship India (Supra) and in M/s AnkitImpex (supra). In M/s:Ankit Impex (Supra), Hon’ e’ Bombay High Court has laid down principles,thatone of the, modes needed be,’ adapted for service of the notice or order as prescribed under Rule 87 of the Act by the authorities.

35. Per contra, Shri. Kale DR has pointed out that Greatship India (stipra) is no more a good judgment on account of reversal by Hon’ble Supreme Court of India. But, Shri. Samal in his oral submissions as well as written submissions has pointed out that he has not Felled upon the judgment of Greatship India (supra) but he has submitted that the principles laid down by Hon’ble Supreme Court of India which was recorded in the judgment of Greatship India (supra) plays a vital role. He has heavily relied upon the principles laid down by Hon’ble Supreme Court in M. Ramaishtaiah (supra). He submits that under Article 141, the judgment is authoritative precedent. on the same set of facts. For that purpose, he took to us to the ratio laid down by Hon’ble Supreme Court in the said matter wherein the issue was that an Assessment Order was passed in September 1969 which was sought to be revised by the Deputy Commissioner u/s 20(2) of the Andhra Pradesh General Sales Tax Act, 1957. He passed an Order prejudicial to the Assessee. The order was said to have been made  on 06th January 1973 but it was served after the expiry of four years from the date of Assessment Order on the Assessee on November 21st 1973, ten and a half months later. There was no explanation by the Deputy Commissioner as to why the service of the Order was so delayed. Considering the facts, Hon’ble Supreme Court of India held that in  the absence of any explanation whatsoever, the Court must presume  that Order was not -made on that date, it purported to have been  made that it could have been made after the expiry of the period of four years . prescribed for passing  such an Order in Revision. The 0rder was bad.

36. The facts before Hon’ble Supreme Court in the said matter and the facts in question  before us is very much identical. There, the Revision Order was made beyond  four years time and served ten and a half months later whereas, in the present matter of the Appellant, the Assessment Order was purported to have been passed on 20/03/2014 for 2006-07 and on 30/08/2014 for 2007-08 respectively, and communicated when an application was made by the Appellant on receipt of the Notice of recovery through bank attachment after a gap of one year and two months for the Period 2006-07 and a gap of nine months for the Period 2007-08. Therefore; in our opinion, the ratio of Hon’ble Supreme Court of India is directly applicable in the present set of facts being very much identical to the facts of the matter before Hon’ble Supreme Court.

37. Further, Shri. Samal referred the judgement by Hon’ble Supreme Court in Nand Singh (supra), wherein it has been held that Order has to be made known either directly or constructively to the party affected by the Order in order to enable him to prefer an appeal. Mere writing of an Order and keeping the same in file would be no Order in the eyes of law. The Order must be communicated either directly or constructively.

38. The communication mode is already prescribed under Rule 87 of the MVAT Rules, 2005. There is no explanation from the Revenue as to why such modes has not been followed nor any recovery action was taken until the expiry of 14 months and 9 months respectively from the date of the Assessment order purported to have been made. Therefore, a presumption is to be drawn that the order may not have been passed. per Contra, the learned DR shri. kale has relied upon the judgments under Income Tax Act, 1961 passed by Hon’ble Calcutta High Court in K.U. srinivasa Rao (supra) and found in the assessment provision was interpreted. We have inquired about how the judgments under the Income Tax Act, 1961 assessment will be applicable in the present set of facts. Without narrating the detailed facts, the Revenue has relied on these two judgments. The pad materia statutory provisions are to be seen when any judgment is referred or relied upon. Here, the judgments are made under Income Tax and Wealth Tax law under different context whereas Hon’ble Supreme Court of India in M. Rarnaishtaiah (supra) has clearly laid down a principle and as to when a presumption can be drawn that to under the General Sales Tax law which is a pari materia statute to the MVAT Act, 2002 and the said principle is directly applicable to the facts in question.

39. Shri. Samal further brought to our notice the judgment of this Tribunal in Bombay Stamping and Cut Metal Corporation (supra). In this case the Tribunal while dealing with similar set of facts held that,

“8. However, having regards to the facts of the case pursuing the entire record and conduct of the parties, we are fully in agreement with observations made by the Appellate Assistant Commissioner of Sales Tax that the order was factually not passed before 16th January 2001, i.e., within a period of 36 months from the date of appeal order for remand. It may be noted that the Revenue could not come with plausible explanation as to why the Ld. Sales Tax Officer failed to show the order on 16th January 2001 if he had really passed the said order. Again, despite writing letter on 23rd January 2001 and, requesting copies of the Assessment Order, the same were neither shown to him nor given to him. Not only that, no  counter  affidavit has been filed yet against the, averments made by the Appellant in that behalf on 19th March, 2001. There is absolutely no doubt in  our mind that the orders’ are antedated. This is highly  objectionable,  It is unfortunate 41fat lit has been repeatedly noticed by the Tribunal that there is a tendency amongst some of the officers to pass such antedated order in order to avoid being cut intheclutche.§of the law of limitation. Such conduct on the part of the responsible officer of the Government cannot be turned down simply as negligence but it amounts to fabricating Government records to save his own skin and it is criminal in nature: The commissioner of sales tax is expected to look into such mischievous action taken on the part of the Assessing Officers.”

40. Shri. Samal the learned Advocate relied on the judgment of Hon’ble West Bengal Taxation Tribunal in Mafatlal Industries Ltd. v. CTO & Ors., (1996) 101 STC 461 wherein a demand notice in Form VII in respect of an assessment made afresh pursuant to an Order dated 27th December, 1989 passed in Second Appeal was served on the Applicant dealer on November 11th 1994 without the Assessment Order. The Assessment Order which was later procured by the dealer. In an application before the West Bengal Taxation Tribunal, the dealer claimed that the Assessment was not actually made on 25th August 1993 and was barred by limitation: The Department contended that it was actually made on 25th August 1993 but that there had been a delay in service of the notice which was inadvertent. Hon’ble Taxation Tribunal held allowing the application that the Applicant was entitled to a presumption to the effect that Assessment Order was not made within the period of limitation of 4 years from December 27th, 1989, on the basis of the fact that the notice of demand was served on November 1st 1994 and the copy of the Assessment Order was procured by them on November,7,th 1994. In the absence of any explanation to dislodge the presumption the assessment and notice of demand were quashed.

41. There are several other judgments relied it support of he contentions by both the parties. shri. Samal has submitted that the  Assessment Orders are timebarred-being antedated and the date of the Order is the date when it is came to their knowledge, since in the peculiar circumstances it was served after 14 months and 9 months respectively and even there is no proof of service of the Order which is admitted by the Revenue. Therefore, Shri. Samal has contended that it is hit by the limitation period prescribed u/s 23(3A) of the MVAT Act, 2002 read with Section 23(3) of the MVAT Act, 2002.

42. The Legislature has amended Section 23 of the MVAT act by inserting sub-section (3A) vide Maharashtra Act No. 6 of 2011 wherein the periods ending on or before 31st March, 2008, Assessment Orders may be made within a period of 7 years from the end of the year containing the said period. Therefore, on a plain reading of sub-section (3A) of Section 23 indicates that the Orders are needed to be passed for the Period 2006-07 on or before 31St March, 2014 and for the Period 2007-08 on or before 31st March 2015. Although it was purported to be made on 20/03/2014 and 30/08/2014, the Orders were not served on the Appellant which is a clear fact on record and when on receipt of Notice of bank attachment for recovery, the Appellant has made an application on 29th May, 2015 then the Orders were served on the Appellant. Here a crucial question is non- service of the Orders. When we have inquired about the same, no evidence was brought on record about the service of the Orders.

43. In the Stay Order dated 06th November, 2017, the this Bench has granted absolute stay in  the present  matter, with an observation that after of giving sufficient opportunities to the Department, the Department has failed  produce such proof. Even during the course of final hearing from 2017 to 2022, the Department” has failed to bring  on record, in spite of specific directions from  this  Bench to the Revenue in respect of the services proof of the  Orders. Therefore, there is no other option left with us rather than to presume that the Orders were not passed on the particular dates, i.e. 20/03/2014 and 30/08/2014, on which the assessment orders were shown as passed. Therefore, we are of the clear opinion that the Assessment Orders for 2006-07 and 2007-08 are antedated.

44. The alternate submissions made by the Revenue that First Appellate Authority has not passed any meritorious Orders and therefore, needed to be remanded back does not appeal to us since the facts brought on record and even in the Order of the Appellate Authority, it is specifically mentioned that the Appellant has made a claim that Order was not at all served on him until he has made an application on 29th May, 2015. Therefore, it is to be treated as antedated and even the Revenue have also stated that the Order was first time communicated on 29th May 2015. Therefore, there is no delay in filing the appeal since the Appellant has filed the appeal on 29th May 2015 itself. However, the Appellate Authority chosen to reject the plea of the Appellant saying that Appellant has not preferred appeal within time. Though he had an occasion to answer and observe the plea of the Appellant and normally, Appellate Authority calls the assessment records to verify the services of the notice in such cases: when Appellant has specifically claimed that Order was not served on Or before 29th May, 2015. Therefore, we are rejecting the alternate submissions made by the Revenue on this ground.

45. The Appellant has made an alternate submissions showing that he has a strong prima facie case in his favour by showing RTI information obtained from the relevant authorities in  respect of the claim of input tax credit claimed are proper and in  consonance with law and RTI information supports his view. Since we are considering the jurisdictional issue on the point of limitation, we are not going much deep into the meritorious aspects of the matter. In view of the above, facts and circumstances and applying the principles laid down by Hon’ble Supreme Court of India, we hold that the Orders for period 2006-07 and 2007-08 dated 20/03/2014 and 30/08/2014 respectively purported to have been made, are not made on that date and these are antedated Orders and hence, we have to consider the date of communication as the date on which it was made known to the Appellant. Since these orders were communicated beyond 14 months and 9 months respectively, they are hit by limitation period prescribed u/s 23(3) r.w. section 23(3A) of the MVAT Act, 2002. We hold these Orders as antedated and passed beyond period of limitation.

46. We carefully perused the record, submissions and heard the arguments made from both sides and also gone through the various case laws referred by them. In view of the ratio laid down by Hon’ble Supreme Court in the case of M. Ramaishtaiah (supra), as explained in earlier paras, in present case the assessment orders were passed on 20/03/2014 and on 30/08/2014 for periods 2006-07 and 2007­08 respectively and these orders were not at all served on the Appellant. It is fact that the Appellant himself obtained the copies of the said orders on 29/05/2015 by making an application from the Assessing Officer by making an application. There was no explanation provided by the revenue for the delay in service of such orders. Considering the fact and the ratio laid by Hon’ble Supreme Court in above referred case, we hold that the assessment orders e neither p4ssed on the purported dates nor served on the Appellant, they were antedated and void  and non-est. Hence, we pass the following order:-

Hence, we pass the following order:-

ORDER

1) VAT Second Appeals Nos. 342 and 343 of 2017 are hereby allowed.

2) The Assessment Orders under the MVAT Act, 2002 passed for periods 2006-07 and 2007-08 are antedated. The assessment orders are passed after the period of limitation. Hence, it is non-est and therefore, are hereby quashed.

3) The orders passed in appeal by the First Appellate Authority for the periods 2006-07 and 2007-08 under the MVAT Act, 2002 against the assessment orders for the same periods are also void ab-initio and are hereby quashed.

4) With this the Appeal Nos.342 and 343 of 2017 are disposed of with no order as to cost.

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