Law: Sales Tax Act, 1990

Section: 22,25,25(2),38,38(1),72(B)

THIS JUDGMENT DELIVERED BY: ABID AZIZ SHEIKH, JUSTICE:---.--- Through this constitutional petition, petitioner has challenged the notice dated 02.10.2015 (impugned notice) for selection of audit of the petitioner for tax year 2004 under section 72(B) of the Sales Tax Act, 1990 (Act). 2. Relevant facts are that in exercise of powers under section 72(B) of the Act, petitioner was selected for audit through random computer balloting on 14.9.2015. Accordingly, through impugned notice dated 02.10.2015, petitioner was requested to provide record maintained under section 22 of the Act to the authorized audit team. The petitioner being aggrieved of the impugned notice dated 02.10.2015 has filed this constitutional petition. 3. Learned counsel for the petitioner submits that respondent department earlier through notice dated 14.7.2015 under section 38(1) read with section 25 of the Act received documents from petitioner for the period from July, 2014 to June, 2015 and in pursuance thereto, amount of Rs.2.5 million was also received from the petitioner as evident from visit report (visit report). Therefore, learned counsel argued that in terms of section 25(2) of the Act, petitioner could not be selected twice for audit in same year. He further referred to contents of notice dated 14.7.2015 and visit report to show that earlier proceedings were audit proceedings under section 25 of the Act and not merely notice under section 38(1) of the Act. 4. Learned counsel for the respondents on the other hand submits that earlier notice dated 14.7.2015 was under section 38 of the Act, however, section 25 of the Act was written inadvertently only on the caption of said notice. He submits that contents of notice as well as visit report shows that it was not audit proceedings under section 25 of the Act but only proceeding under section 38 of the Act, therefore, impugned notice dated 02.10.2015 was not second audit in same year as alleged by the petitioner. He adds that after impugned notice dated 02.10.2015 show cause notice was issued on 20.6.2017 and assessment order was also passed on 29.6.2017, therefore, petitioner should avail remedy of appeal against said assessment order, if…

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