TMI Blog2021 (8) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment should be completed within a period of six months from the date of receipt of the Audit Visit Report. In the present case, there is no dispute at all that the notice in Form VAT-306 was served on the Petitioner on 1st October, 2012. The six months period from that date ended on 31st March, 2013. The assessment was therefore required to be completed on or before 31st March, 2013. Viewed from another angle, the CST was presented with a fait accompli by the time he applied his mind to whether extension should be granted at all or not. There was already an assessment order passed on 15th May 2003 by the time he had to decide on the question of extension. The language of the proviso to Section 42 (6) requires the CST to assess the merit of each such case. It is not a case of automatic extension of time. The Court is unable to sustain the validity of the impugned assessment order dated 15th May 2013, which, on the date it was passed, was in violation of Section 42(6) of the OVAT Act - Petition allowed. - W.P. (C) No.15956 of 2013 - - - Dated:- 29-7-2021 - DR. S. MURALIDHAR CHIEF JUSTICE AND B.P. ROUTRAY JUDGE Petitioner Mr. B. K. Mohanty, Senior Advo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat on 18th October 2012, the Petitioner s representative appeared and the assessing authority recorded the statement. It is then stated that despite the Petitioner undertaking to produce particulars within a week, he did not do so. Therefore, on 22nd January 2013, an intimation was issued to the Petitioner for further proceedings, fixing the date to 5th February, 2013. It is stated that on 5th February, 2013, the Petitioner appeared and further proceedings took place. These proceedings continued and finally the Petitioner sent documents to the assessing authority which were taken on record and examined. 9. In Para-10. (Viii) of the counter affidavit, it is stated as under: The notice in Form VAT-306 having been served on the petitioner on 01.10.2012, the assessment was required to be completed within six months from the date of service of such notice, i.e., on or before 31.03.2013 as per Section 42 (6) of the OVAT Act 10. Realising that the limitation was going to an end on 31st March 2013, the Assessing Authority on 25th March, 2013 i.e. six days prior thereto, requested the Commissioner of Sales Tax (CST) to invoke the power conferred on him in terms of proviso to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 subsection (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 subsections. (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 ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed by the CST on his request for extension of time. Therefore, on the date that the assessment order was passed, there was no order passed by the CST extending time for making the assessment. Strangely, the impugned assessment order dated 15th May, 2013 does not even mention the fact that on 25th March, 2013 the assessing authority had made a request in terms of the proviso to Section 42 (6) of the OVAT Act to the CST for extension of time for completion of the assessment proceedings. 20. The order at Annexure-A/1 to the counter affidavit, reveals that the extension was granted only on 20th July, 2013 i.e. more than two months after the assessment order was passed. This was in fact noticed in the said order, the full text of which reads as under: OFFICE ORDER Audit Visit Reports (AVRs) under the Orissa Value Added Tax Act, 2004 and the Orissa Entry Tax Act, 1999 in case of M/s. Cobra Instalaciones Y Servicious S.A., TIN- 21961405922 for the tax period from 1-04-2009 to 31-12- 2011 were received in O/o. the D.C.C.T., Keonjhar Circle, Keonjhar on 26-09-2012 and the notices for audit assessments were served on the dealer on 1-10-2012. As reported by the D.C.C.T., Keon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment order was unsustainable in law. 23. Viewed from another angle, the CST was presented with a fait accompli by the time he applied his mind to whether extension should be granted at all or not. There was already an assessment order passed on 15th May 2003 by the time he had to decide on the question of extension. The language of the proviso to Section 42 (6) requires the CST to assess the merit of each such case. It is not a case of automatic extension of time. It is a quasi-judicial exercise and it is the discretion of the CST whether or not to allow such extension. This is the legislative intent behind the use of the word may in the proviso to Section 42 (6) of the OVAT Act. 24. When viewed to this background, the order dated 20th July, 2013 passed by the CST simply notes the dates on which the notice for audit assessment was served and when the report was served and the fact that assessments could not be completed within the stipulated period . None of the factors which prompted the Assessing Authority to request for extension of time have been noticed in the said office order dated 20th July 2013. In other words, there was a complete abdication of the essenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as already become time barred. A valuable right has also accrued in favour of the assessee when the period of limitation expires. If the Commissioner is permitted to grant the extension even after the expiry of original period of limitation prescribed under the Act, it will give him right to exercise such a power at any time even much after the last date of assessment. 28. In light of the legal position explained above, it was important for the Commissioner to have exercised the power to extend the period before the original period of limitation expired i.e. before 31st March, 2013. of limitation 29. For all of the abovementioned reasons, the Court is unable to sustain the validity of the impugned assessment order dated 15th May 2013, which, on the date it was passed, was in violation of Section 42(6) of the OVAT Act. The Court further holds that the order dated 20th July, 2013 passed by the CST in terms of the proviso to Section 42 (6) of the OVAT Act cannot validate such a illegal assessment order, which, on the date it was passed, was clearly time barred. 30. The amount deposited by the Petitioner pursuant to the interim order dated 27th August 2013 will be refunded t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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