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TMI Blog2019 (6) TMI 1133X X X X Extracts X X X X X X X X Extracts X X X X ..... ature 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 Rs. 3,53,36,607.00 including penalty of Rs. 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 pass such other order/orders as this Hon'ble Court may deem fit and proper; And allow the Writ Petition. And for this act of kindness the Petitioner shall as in duty bound ever pray." 2. Learned counsel for the petitioner at the outset fairly submitted that he is not canvassing any other points raised, but he is restricting his argument only on the point of extension of time, which ought to have been sought for within six months from the date of receipt of the Audit Visit Report. That having not been done, the impugned order of assessment is barred by limitation. In order to appreciate the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 audit in respect of such individual dealers or class of dealers be conducted in accordance with the audit programme approved by him: Provided that the Commissioner may direct tax audit in respect of any individual dealer or class of dealers on out of turn basis or for more than once in an audit cycle to prevent evasion of tax and ensure proper tax compliance. (3) Tax audit shall ordinarily be conducted in the prescribed manner in the business premises or office or godown or warehouse or any other place, where the business is normally carried on by the dealer or stock in trade or books of account of the business are kept or lodged temporarily or otherwise. (4) After completion of tax audit of any dealer under sub-section (3), the officer authorized to conduct such audit s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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-sections. (6) Notwithstanding anything contained to the contrary in any provision under this Act, an assessment under this section shall be completed within a period of six months from the date of receipt of the Audit Visit Report : Provided that if, for any reason, the assessment is not completed within the time specified in this subsection, the Commissioner may, on the merit of each such case, allow such further time not exceeding six months for completion of the assessment proceeding. (7) No order of assessment shall be made under subsection (3) or sub-section (4) after the expiry of one year from the date of receipt of the Audit Visit Report." 5. Learned counsel for the petitioner further contended that the issue is squarely covered by the ratio in the case of State of Punjab and Ors.-v- Shreyans Indus Ltd. and Ors; reported in (2016) 4 SCC 769, wherein the Hon'ble Supreme Court at paragraphs-8, 9 and 24 has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of any period but has failed to apply for registration, the assessing authority shall, within five years after the expiry of such period, after giving the dealer a reasonable opportunity of being heard, proceed to assess, to the best of his judgment the amount of tax, if any, due from the dealer in respect of such period and all subsequent periods and in case where such dealer has wilfully failed to apply for registration, the assessing authority may direct that the dealer shall pay by way of penalty, in addition to the amount so assessed, a sum not exceeding one-and-a-half times that amount. (7) The amount of any tax, penalty or interest payable under this Act shall be paid by the dealer in the manner prescribed, by such date as may be specified in the notice issued by the assessing authority for the purpose and the date so specified shall not be less than fifteen days and not more than thirty days from the date of service of such notice: Provided that the assessing authority may, with the prior approval of the Assistant Excise and Taxation Commissioner, in charge of the district extend the date of such payment or allow payment by instalments against an adequate se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating the Commissioner to give his reasons for extension, and such reasons are to be recorded in writing. Obviously, the purpose of giving reasons in writing is to ensure that the power to extend the period of limitation is exercised for valid reasons based on material considerations and that power is not abused by exercising it without any application of mind, or mala fide or on irrelevant considerations or for extraneous purposes. Such an order of extension of time, naturally, is open to judicial review, albeit within the confines of law on the basis of which such judicial review is permissible. xxx xxx xxx xxx 24. If one is to go by the aforesaid dicta, with which we entirely agree, the same shall apply in the instant cases as well. In the context of the Punjab Act, it can be said that extension of time for assessment has the effect of enlarging the period of limitation and, therefore, once the period of limitation expires, the immunity against being subject to assessment sets in and the right to make assessment gets extinguished. Therefore, there would be no question of extending the time for assessment when the assessment has already become time-barred. A valuable right has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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