REVENUE

VAT assessment set aside on appeal and remitted to tribunal customs entitled to withdraw original assessment and substitute anotherBennett v of Customs & Excise Commissioners...VAT assessment set aside on appeal and remitted to tribunal customs entitled to withdraw original assessment and substitute anotherBennett v of Customs & Excise Commissioners (No 2): ChD (Patten J): 24 January 2001Customs assessed the taxpayer to VAT in the sum of 50,635.

On appeal from the VAT and duties tribunal, Carnwath J [1999] STC 248 ordered the assessments to be set aside and remitted to a differently constituted tribunal for reconsideration.Customs withdrew the earlier assessment and presented a fresh assessment in the sum of 46,402.

The taxpayer applied unsuccessfully to the tribunal for the second assessment to be struck out as ultra vires and/or an abuse of process.

The taxpayer appealed.Marion Lonsdale (instructed by Salusburys, Leicester) for the taxpayer.

Kenneth Parker QC (instructed by Solicitor of Customs & Excise) for the commissioners.Held, dismissing the appeal, that section 73(9) of the Value Added Tax Act 1994 Act permitted the commissioners to withdraw an assessment at any time and make a fresh assessment covering the same period, provided that the power to make an assessment under section 73(1) could still be exercised; that the validity of the second assessment therefore depended upon compliance with any conditions imposed upon the exercise of that power by the 1994 Act; that section 73(9) did not prohibit the making of a new assessment under section 73(1); that the taxpayer was not unprotected against the commissioners re-litigating issues which they had already lost, because the power to substitute a second assessment for one which the tribunal had found to be defective was to be exercised subject to the doctrine of res judicata and/or estoppel; that no estoppel could arise here since the tribunal had not made a final determination of the taxpayers liability for VAT; and that while the taxpayers right to a fair hearing under article 6 of the European Convention on Human Rights required the judicial process to provide for the effective enforcement of the tribunals decision, the commissioners conduct here, far from being inconsistent with the order of the court, had in fact given effect to it.