Decided on September 28,2010

Debabrata Roy Choudhury And Another Appellant
Sales Tax Officer, Burdwan Charge And Others Respondents


R.K.DATTA CHAUDHURI, J. - (1.)THIS application under section 8 of the West Bengal Taxation Tribunal Act 1987, is directed against the order passed on November 27, 2009 by Shri A. A. Mallik, Joint Commissioner of Commercial Taxes, Durgapur circle in the Appeal Case No. VAT/A/DP/BN/121/08 -09 under section 84 of the West Bengal Value Added Tax Act, 2003, enhancing the demand assessed in the assessment Case No. 231(c) of 2008 -09 in respect of the period fourth quarter ending March 31, 2006 with prayers, inter alia, for quashing the impugned revisional and assessment order and to declare that the initiation of assessment proceeding and the appeal were barred by limitation. The applicant filed an appeal under section 84 of the West Bengal Value Added Tax Act against the ex parte assessment order under section 46 of the West Bengal Value Added Tax Act, 2003 asserting that he was allotted as a dealer in Group E under Burdwan charge, he filed all returns in the said group for the aforesaid period and he was deemed to have been assessed there but the STO of Group C assessed and made a demand of Rs. 41,250.
(2.)From the appellate order it appears that the applicant agitated the point of non -service of notice of initiation of the assessment before the appellate authority and the appellate authority held, "no evidence confirming the service of the said notice on dealer is however available in the case records and hence the dealer's grievance that no opportunity of being heard was allowed cannot be ruled out". He also held that the assessment proceeding was initiated on August 28, 2008 on the ground of non -submission of return fixing date of hearing November 27, 2008, and completed the assessment ex parte on the same date on the ground of non -appearance of the said dealer. On consideration of the books of accounts and the returns filed by the applicant the appellate authority enhanced the gross turnover reducing the amount of ITC admissible.
(3.)ON being aggrieved with this appellate order the applicant filed this application on the grounds : (i) the opportunity of books of accounts was denied at the assessment stage; (ii) his claim of ITC on opening stock was denied inspite of production of stock book; and (iii) enhancement of the turnover was made without compliance of rule 149 of the West Bengal Value Added Tax Rules, 2005. The applicant has not asserted the fact as to why both the assessment and appellate proceeding were barred by limitation.

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