TMI Blog2019 (4) TMI 1884X X X X Extracts X X X X X X X X Extracts X X X X ..... y become time barred. A valuable right has also accrued in favour of the assessee when the period of limitation expires. The orders of assessment involved in each of the writ petition are without jurisdiction - Petition allowed. - W. P. (C) Nos. 16691, 16692 and 16693 of 2017 - - - Dated:- 10-4-2019 - K. S. JHAVERI C. J. and BISWANATH RATH J. M/s. R. P. Kar , A. N. Ray , B. P. Mohanty and N. Paikaray for the petitioner. The Standing Counsel for the Revenue. JUDGMENT The judgment of the court was delivered by K. S. Jhaveri C. J.- Since in all these writ petitions, the questions of law involved are similar, learned counsel for the petitioner requested to take up W. P. (C) No. 16692 of 2017 as leading case in disposal of all the three cases together. Learned counsel for the opposite parties have no objection to the same. As such, W. P. (C) No. 16692 of 2017 is taken up as leading case and the order to be passed herein, will govern the fate of other two writ petitions, i.e., W. P. (C) Nos. 16691 and 16693 of 2017. 2. By way of these writ petitions, the petitioners have challenged the action of the opposite party No. 2-Joint Commissioner of Sales Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ix months from the date of service of notice on the petitioner, but extension of further six months time was sought for as it is reflected in the order dated March 10, 2017, which reads as under : 10.3.17. Seen the M. N. As per proviso to section 42(6) of the OVAT Act if an assessment is not completed within the specified time, the CCT may allow such further time not exceeding six months on the merit of the case. Accordingly, CCT(O), Cuttack, is requested to extend further time for completion of assessment. However, extension of time was granted on March 29, 2017, as is revealed from the order dated March 31, 2017 passed by the Joint Commissioner of Sales Tax, which reads as under : 31.3.17. Seen the M. N. vide Letter No. 4942, dated March 29, 2017, CCT(O), Cuttack, has extended the time for completion of the assessment up to June 12, 2017 under section 42(6) of the OVAT Act. Issue notice fixing date to April 17, 2017. 6. The 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of revenue in respect of any tax period or periods as determined on such audit and incorporated in the audit visit report. (2) Where a notice is issued to a dealer under sub-section (1), he shall be allowed time for a period of not less than 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 provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... day specified in the notice or as soon afterwards as the assessing authority shall, after hearing such evidence as the dealer may produce, and such other 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 last 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 last 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 dea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin a period 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, theoretically, for any length ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 afore said interpretation, other arguments of Mr. Ganguli lose all significance. Argument of the learned senior counsel for the appellants based on section 148 of the 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 (Commissioner of Income-tax v. Ajanta Electricals [1995] 215 ITR 114 (SC) ; [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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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