TMI Blog2019 (6) TMI 1133X X X X Extracts X X X X X X X X Extracts X X X X ..... (C) No.11126 of 2008 as leading case. Learned counsel for the opposite parties have no objection to the same. As such, W.P.(C) No.11126 of 2008 is taken up as leading case and the order to be passed herein, will govern the fate of other two writ petitions, i.e., 11127 and 11128 of 2008. In W.P.(C) No.11126 of 2008, the petitioner has prayed for the following relief: In the facts and circumstances stated above, it is humbly prayed that this Hon ble Court may graciously be pleased to issue Rule NISI in the nature of Writ of Certiorari and/or any other appropriate Writ/Writs, call for the records and calling upon the Opp. Parties to show cause; As to why the order of Assessment dtd.2.7.2008 passed by the Asst Commissioner of Sales Tax, Sambalpur Range, Sambalpur (vide Annexure-6) under Section 42(4) of the Orissa Value Added Tax Act, 2004 for the period 1.4.2005 to 30.11.2006 imposing tax amounting to ₹ 3,53,36,607.00 including penalty of ₹ 2,35,57,738.00, shall not be quashed; And if the Opp. Parties fail to show cause or show insufficient cause, make the said Rule NISI absolute. And pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d is put up to me today along with the order of extension of time for further six months for completion of assessment vide Head Office letter No. VII (REV) 06/08/10698/CT dated 26.6.2008. In this letter of the Head Office it is revealed that the C.C.T.(O), Cuttack has been pleased to extend a period of further six months time for completion of assessment U/s.42(6) of the OVAT Act and fixed the date of completion of assessment on dated 04.7.2008. Hence, put up the record on 2.7.2008 for issue of assessment order and demand notice to the dealer-Company. 4. Learned counsel for the petitioner took us to the provisions of Sections 41 and 42 of the OVAT Act, which read as under: 41. Identification of tax payers for tax audit.- (1) The Commissioner may select such individual dealers or class of dealers for tax audit on random basis or on the basis of risk analysis or on the basis of any other objective criteria, at such intervals or in such audit cycle, as may be prescribed. (2) After identification of individual dealers or class of dealers for tax audit under sub-section (1), the Commissioner shall direct that tax au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an thirty days for production of relevant books of account and documents. (3) If the dealer fails to appear or cause appearance, or fails to produce or cause production of the books of account and documents as required under sub-section (1), the assessing authority may proceed to complete the assessment to the best of his judgment basing on the materials available in the Audit Visit Report and such other materials as may be available, and after causing such enquiry as he deems necessary. (4) Where the dealer to whom a notice is issued under sub-section (1), produces the books of account and other documents, the assessing authority may, after examining all the materials as available with him in the record and those produced by the dealer and after causing such other enquiry as he deems necessary, assess the tax due from that dealer accordingly. (5) Without prejudice to any penalty or interest that may have been levied under any provision of this Act, an amount equal to twice the amount of tax assessed under sub-section (3) or sub-section (4) shall be imposed by way of penalty in respect of any assessment completed under the said sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r evidence as the assessing authority may require on specified points, [ pass an order of assessment within a period of three years from the last date prescribed for furnishing the last return in respect of any period . ] (4) If a dealer having furnished returns in respect of a period, fails to comply with the terms of notice issued under sub-section (2), the assessing authority shall, within a period of three years from the 1st date prescribed for furnishing the last return in respect of such period, pass an order of assessment to the best of his judgment. (5) If a dealer does not furnish returns in respect of any period by the last date prescribed the assessing authority shall within a period of five years from the last date prescribed for furnishing the return in respect of such period and after giving the dealer a reasonable opportunity of being heard, pass an order of assessment to the best of his judgment. (6) If upon information which has come into his possession, the assessing authority is satisfied that any dealer has been liable to pay tax under this Act in respect of any period but has failed to apply for registration, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of one year from the date of order under review. (emphasis supplied) 9. A mere reading of the aforesaid provision would reflect that wherever return is filed by the assessee, assessment is to be made within a period of three years from the last date prescribed for furnishing the return in respect of such period. On the other hand, in those cases where return is not filed or any dealer, who is liable to pay the tax under the Act, does not get himself registered therein, the period of assessment prescribed is five years. We are not concerned with the alternate situation as in the instant appeals not only the assessees are registered dealers, they had also filed their returns regularly within the prescribed period and, therefore, assessments were to be completed within a period of three years from the last date prescribed for furnishing the returns, which is the normal period prescribed. At the same time, sub-section (10) of Section 11 gives power to the Commissioner to extend a period of three years. Interestingly, there is no upper limit prescribed for which the period can be extended, meaning thereby such an extension can be given, theor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner which is equitable to both the parties. Therefore, the only way to interpret the same is that by holding that power to extend the time is to be exercised before the normal period of assessment expires. On the aforesaid interpretation, other arguments of Mr Ganguli lose all significance. Argument of the learned Senior Counsel for the appellants based on Section 148 CPC would be of no consequence. This section categorically states that power to enlarge the period can be exercised even when period originally fixed has expired. Likewise, reliance upon Section 139(2) of the Income Tax Act is misconceived. That provision is made for the benefit of the assessee which empowers the assessing officer to grant an extension of time for filing of the return of income and, therefore, obviously will have no bearing on the issue at hand. Moreover, this Court in Ajanta Electricals case [ CIT v. Ajanta Electricals , (1995) 4 SCC 182] , which is relied upon by the learned counsel for the appellant, held that the time can be extended even after the time allowed originally has expired on the interpretation of the words it has not been possible occurring in Section 133(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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