TMI Blog2009 (12) TMI 859X X X X Extracts X X X X X X X X Extracts X X X X ..... er with the notice of demand on December 5, 2009 under memo dated November 28, 2008 and posted on February 3, 2009 requiring payment by February 9, 2009. But no notices had been given to him for the hearing dated May 12, 2008. On the adjourned date April 23, 2008 there was no hearing and no order was passed on the date. He contended that from the face of the order it appeared that (i) May 12, 2008 was taken as date of hearing and no notices thereto had been served; (ii) from overwriting of the date May 12, 2008, inordinate delay in despatching the postal cover of demand notice; an abnormal time given for payment; it had to be inferred that the assessment was back dated and the same was barred by limitation. Respondent No. 1 contested the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order appears to be overwritten. It is clear that figure 10 was made 12. 10th May of 2008 was Saturday and it was a weekly off day of the office of the respondents. 10th July of 2008 was a week day. In all probability the assessing officer was going to write 07 and the same was overwritten as 05. The postal cover containing the demand notice along with the impugned assessment order was sent under memo Nos. 3862 and 3863 dated November 28, 2008. It bears stamp of Dharmatala Post Office (Kol-13) of February 5, 2009 and of the despatching post office on February 3, 2009. It took more man six months' time for sending the demand notice to the despatch section and 68 days' time to post the cover. These abnormal delays were not explai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench of this honourable Tribunal on perusal of the records submitted by the respondent found that hearing of the assessment case was concluded on August 28, 1993, the next order sheet contained the order dated August 25, 1993 showing the impugned assessment and thereafter there was an order dated October 6, 1994 stating that the demand notice in form VII was not issued and accordingly it should be issued immediately. The issue register of 1993 did not show that any demand notice was ready for despatch bearing the memo number dated October 1, 1993. So the honourable Bench of this Tribunal was not satisfied that the assessment order was made on August 25, 1993 and hence held that the applicant was entitled to a presumption to the effect that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould be presumed that the impugned assessment order was not passed on the date it is claimed. The impugned order was claimed to have been sent to the despatch section vide memo Nos. 3862 and 3863 dated November 28, 2008. If it were as such it should be held that the impugned order was made within the period of limitation because by amendment the period of limitation for assessment as provided in section 49 of the West Bengal VAT Act, 2003 was extended up to November 30, 2008. In obedience with our direction, the Revenue produced the Issue Register for the period from April 1, 2008 to April 2, 2009 containing serial Nos. 1 to 6273 of the office of respondent No. 1, Sales Tax Officer, New Market Charge. It reflects a horrible affair of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s February 3, 2009 which is 64 days after the date of expiry of the period of limitation. So in view of the aforesaid decision of the honourable Supreme Court it should be held that the impugned order was passed beyond November 30, 2008, i.e., the impugned assessment order was barred by limitation. In course making argument the learned advocate Sri Bhattacharyya contended that by fabricating the date of order the respondent-assessing officer practised fraud and in support of his contention he cited the decision of the honourable Supreme Court in the case of Smt. Shrisht Dhawan v. Shaw Brothers reported in AIR 1992 SC 1555. The fraud not having been asserted in the application enabling the respondent-assessing officer concerned to answer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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