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Assessment after giving notice to the registered dealer.

46. (1) Where--

(a) no return has been furnished by a registered dealer for any return period of a year; or

(aa) return has been furnished by a registered dealer without paying net tax or interest for any of the tax period within the prescribed date, or within such date, as may be extended by the Commissioner; or

(b) a registered dealer fails to make payment of the amount of net tax or interest, in deficit within the date specified in a notice issued under sub-section (2) of section 41; or

(c) upon verification of return under sub-section (1) of section 42, or upon any enquiry, or upon report received under section 43, or otherwise, the Commissioner is not satisfied that return furnished by a registered dealer is correct and complete; or

(ca) the report prepared under sub-section (3) of section 43 , contains the finding as referred to in sub-section (5) of section 43 ; or

(d) upon search or seizure of accounts, registers of documents, or of goods of a registered dealer, the Commissioner has reasons to believe that the registered dealer has not accounted for any turnover of sales or turnover of purchases in the return furnished by such dealer or in the accounts, registers of documents referred to in section 63; or

(e) a refund has been made to a registered dealer under clause (a) or clause (aa) of section 61; or

(eb) a refund has been made to a registered dealer under sub-section (8A) of section 22; or

(eb) The Commissioner has reasons to believe that the assessment under sub-section (2) of section 9 of the Central Sales Tax Act. 1956 (74 of 1956) is required to be made for any year or part thereof ; or

(ec) where a registered dealer is enjoying deferment, tax holiday, or remission as referred to in clause (a) or clause (b) or clause (c) of subsection (1) of section 116 ;

(f) a registered dealer brings to the notice of the Commissioner, in writing, within six months from the end of any year that due to error in fact or in law, an amount of net tax or interest has been paid by him in excess of what was actually payable by him for any return period of that year and the Commissioner is satisfied on the grounds adduced by such registered dealer; or

(g) a registered dealer other than a dealer enjoying deferment, exemption or remission of tax under clause (a), or clause (b), or clause (c) of sub-section (1) of section 118, as the case may be, at his option, does not carry forward the excess amount of input tax credit or input tax rebate, which has accumulated during a year, to a return period in the following year and brings to the notice of the Commissioner, in writing, within three months from the end of the following year that he wants refund of the excess amount of input tax credit or input tax rebate which has accumulated during that year; or

(i) a registered dealer has closed his business; or

(ii) the Commissioner deems it fit and proper for any other reason, the commissioner shall, after giving a notice to such dealer , proceed in such manner as may be prescribed ti assess to the best og his judgment the amount of net tax payable by such dealer in respect of such year or part thereof, as he may deem fit and proper

provided that where pursuant to the notice issued under this sub-section for making assessment of net tax payable by a dealer in respect of any year or part thereof for the reason of clauses (aa) or clause (b), as the case may be, the dealer voluntarily makes payment of net tax, interest and late fee, in full, payable according to the return which has already been furnished by him in respect of such year or part thereof and an amount as a penalty, for non-payment of tax, interest and late fee referred to in clause (aa), or clause (b) of this sub-section in respect of such year or part thereof, of a sum equal to ten per centum of the amount of net tax , interest and late fee payable in deficit before making full payment of tax, interest, late fee according to such return and furnishes, within the time specified in such notice , the receipted challans evidencing full payment of net tax, interest and late fee according to such return, the Commissioner shall withdraw such notice issued under this subsection and shall not proceed to make assessment in terms of clause(aa) or clause (b), as the case may be, of this sub-section :

Provided further that no assessment shall be made under this section for the period for which an assessment made under sub-section (2) of section 45 has not been revoked under sub-section (3) or sub-section (4) of the said section, and action has been taken under section 55, or appeal is pending under section 84 or application for revision is pending under section 87 in respect of such assessment:

Provided also that if on appeal or revision, the provisional assessment order passed under section 45 is either annulled or set aside with a direction to make fresh assessment, no further action shall be taken under section 45 and assessment for that period shall be made a fresh under this section and such assessment shall be completed within two years from the date of order made in appeal or revision.

Provided also that no assessment proceedings by issue of a notice under subsection (1) shall be initiated by the authority other than the authority referred to in section 43, where a notice under sub-section (2) of section 43 has been issued for the purpose of auditing the accounts , registers and documents of the dealer selected under sub-section (1) of section 43: Provided also that where the Commissioner has , under sub-section (4) of section 3, delegated his power to make assessment to any authority, such authority shall not, 21 where no scrutiny in accordance with the provision of subsection (1) of section 41 of a return for return period starting on or after 1st day of April, 2010 , furnished under sub-section (1) of section 32 by a registered dealer has been caused to such dealer within the statutory time-limit referred to in the sub-section (3) of section 41, proceed to make assessment of net tax payable by a dealer under this sub-section unless he states, in writhing , to the Commissioner the reason or reasons, referred to in clause or clauses of this sub-section, for which he wants to proceed for making such assessment and obtains the approval of the Commissioner as regards proceeding with such assessment :

Provided also that where a notice under sub-section (2) of section 43 has been issued for the purpose of auditing the accounts, registers , and documents of the dealer selected under sub-section (1) of section 43, the provision of the fifth proviso shall not apply;

Provided also that no assessment proceedings by issue of notice under this sub-section shall be initiated for any period starting on or after the first day of April, 2008 , by any authority including an authority as referred to in section 43 –

(a) where the amount paid in short on accounts of net tax or excess claim of input tax credit or input tax rebate or non-reversal of input tax credit , or for any other reason , or on account of short payment of interest or late fee , has been quantified in the audit report for such period under subsection (3) of section 43: and

(b) where the dealer upon receipt of such audit report for such period has admitted in writing the observations made therein and has paid in full amount paid in short as referred to above and as quantified in such report, within one month from the receipt of the audit report, and

(c) where any other reason for assessment as given in different clauses, other than clause (ca), does not exist, And upon fulfillment of the conditions specified in clause (a), clause (b), and clause (c), initiation, if any, already made for assessment for such period shall be dropped.

Provided also that where a notice under sub-section (2) of section 43 has been issued for the purpose of auditing the accounts , registers , and documents of the dealer selected under sub-section (1) of section 43 , the provision of the fifth proviso shall not apply;

Provided also that no assessment proceedings by issue of notice under this sub-section shall be initiated for any period starting on or after the first day of April , 2008 , by any authority including an authority as referred to in section 43 –

(d) where the amount paid in short on accounts of net tax or excess claim of input tax credit or input tax rebate or non-reversal of input tax credit , or for any other reason , or on account of short payment of interest or late fee , has been quantified in the audit report for such period under subsection (3) of section 43 : and

(e) where the dealer upon receipt of such audit report for such period has admitted in writing the observations made therein and has paid in full amount paid in short as referred to above and as quantified in such report , within one month from the receipt of the audit report, and

(f) where any other reason for assessment as given in different clauses, other than clause (ca), does not exist, And upon fulfillment of the conditions specified in clause (a), clause (b), and clause (c), initiation, if any , already made for assessment for such period shall be dropped.

Provided also that where a notice under sub-section (2) of section 43 has been issued for the purpose of auditing the accounts, registers, and documents of the dealer selected under sub-section (1) of section 43, the provision of the fifth proviso shall not apply.

(a) where the amount paid in short on accounts of net tax or excess claim of input tax credit or input tax rebate or non-reversal of input tax credit, or for any other reason , or on account of short payment of interest or late fee, has been quantified in the audit report for such period under subsection (3) of section 43: and

(b) where the dealer upon receipt of such audit report for such period has admitted in writing the observations made therein and has paid in full amount paid in short as referred to above and as quantified in such report , within one month from the receipt of the audit report, and

(2) While making an assessment under sub-section (1), the Commissioner may, if he is satisfied--

(a) that the dealer has defaulted in furnishing any return as required under section 32 without any reasonable cause; or

(b) the dealer has furnished such return but has failed to pay the full amount of net tax for any tax period within the prescribed date or within such date as extended by the Commissioner, direct that the dealer shall pay by way of penalty, in addition to the amount of tax so assessed, a sum not exceeding fifty per centum of the amount so assessed.

(3) The Commissioner shall--

(a) in making the assessment under sub-section (1) and imposing the penalty under sub-section (2), give the dealer a reasonable opportunity of being heard; and

(b) after making such assessment or imposing such penalty, issue to the dealer a notice directing him to pay the net tax payable, late fee interest determined, the difference between the amount of input tax credit which the dealer has carried forward in the return for the next return period and the amount of excess of net tax credit over output tax payable, as is found admissible upon assessment, which may be carried forward to the nest return period or where no such amount which can be carried forward to the next return period is found admissible upon assessment, the amount of input tax credit which the dealer has carried forward in the return for the nest return period, and penalty imposed upon such assessment in such manner as may be prescribed.