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TMI Blog2019 (4) TMI 1884X X X X Extracts X X X X X X X X Extracts X X X X ..... , Angul Range, Angul in passing the order of assessment dated May 31, 2017 under annexure 1. Learned counsel for the petitioner contended that the assessment under the Act is required to be done within six months after service of notice which has not been done and the extension of time which was sought for after expiry of six months. 3. The learned counsel for the petitioner claimed that the issue involved in these writ petitions is squarely covered by the judgment of this court passed on March 6, 2019 in W. P. (C) Nos. 11126, 11127 and 11128 of 2008 (SMC Power Generation Limited v. State of Odisha [2019] 65 GSTR 274 (Orissa)). All the three writ petitions involved herein have the same prayer which is reproduced herein below : "Under the aforesaid facts and circumstances, the petitioner prays this honourable court to be pleased to issue notice to the opposite parties and after hearing both sides, allow this petition by issue of a writ of certiorari quashing the order of assessment dated May 31, 2017 (annexure 1) for the ends of justice ; And issue any other writ/writs order and/or orders and direction and/or directions as this honourable court may deem fit and proper ; And f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dit 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 con ducted 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 man ner 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 shall, within seven days from the date of completion of the audit, submit the audit report, to be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 service of notice issued under sub-section (1) along with the audit visit report : Provided that if, for any reason, the assessment is not completed within the time specified in this sub-section, 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 sub-section (3) or sub-section (4) alter the expiry of one year from the date of receipt of the audit visit report." 7. The learned counsel for the petitioner further contended that the issue is squarely covered by the ratio in the case of State of Punjab v. Shreyans Indus Ltd. reported in [2016] 91 VST 23 (SC) ; [2016] 4 SCC 769, wherein the honourable Supreme Court at paragraphs 8, 9 and 24 has observed as follows (pages 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Act 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lled by obligating 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 malafide 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 . . . . 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the aforesaid expression would mean that the time can be extended even after original time prescribed in the said provision has expired. Same is our answer to the argument of Mr.Ganguli predicated on section 28 of the Arbitration Act, 1940 as that provision was in altogether different context." 8. Taking into consideration the provision under sub-section (6) of section 42 of the OVAT Act including the proviso, it can be safely said that the period had already expired when the extension for time to complete the assessment was sought for. The same was done much after six months of expiry of the period of limitation in January, 2017 but the extension is sought for in March, 2017. 9. In that view of the matter and in view of the observations made by the honourable Supreme Court in the case of Shreyans Indus Ltd. [2016] 91 VST 23 (SC) ; [2016] 4 SCC 769, we are of the considered opinion that the orders of assessment involved in each of the writ petition are without jurisdiction. These writ petitions deserve to be allowed and the same are accordingly allowed. No other contention is canvassed in view of the fact that the petitioner has succeeded on the first point in the present case. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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