2015 (3) TMI 342 - HC - VAT and Sales Tax

Validity of order of assessment - Bar of limitation - Non compliance with the statutory requirement of Section 42(2) of the OVAT Act - Held that - There is no explanation for inordinate delay of 24 months caused in issuing the assessment order to the petitioner. Therefore, we have no hesitation to hold that the order of assessment under Annexure-1 was not made on the date it was purported to have been made. In order to bring the assessment within the period of limitation, the order of assessment bears the date 12.01.2007, whereas it has been passed much after that. If the notice issued is invalid for any reason, then the proceeding initiated in pursuance of such notice would be illegal and invalid. Section 42 (2) of the OVAT ACT is a mandatory provision not with regard to any procedural law, but with regard to a substantive right. Any infirmity or invalidity in the notice under Section 42(2) of the OVAT Act goes to the root of jurisdiction of the Assessing Authority. Issue of notice under Section 42(2) of the OVAT Act is a condition precedent to the validity of any assessment under Section 42 of the OVAT Act. Therefore, if the notice issued for assessment is invalid, the assessment would be bad in law. Hence, the notice for assessment of tax without allowing the minimum period of 30 days for production of the books of account and documents is invalid in law and consequentially, the order of assessment and demand notice passed/issued are not sustainable in law. In the instant case, notice for assessment of tax basing on the audit visit report was issued in Form VAT-306 dated 30.12.2006 requiring the petitioner to appear in person or through his authorized agent before the Assessing Officer on 12.01.2007 and produce or cause to be produced the books of account and documents for the period from 01.04.2005 to 31.07.2006. Thus, notice in Form VAT-306 shows that minimum time as provided under sub-section (2) of Section 42 of the OVAT Act has not been granted to the petitioner. Thus, it is a clear case of violation/infraction of mandatory provisions of Section 42(2) of the OVAT Act. Therefore, the notice for assessment of tax in pursuance of audit visit report is invalid. - order of assessment passed in pursuance of notice in Form VAT-306 issued in violation of requirement of Section 42(2) of the OVAT Act is bad in law. - Decided in favour of assessee.

Summary

Issues:
1. Antedated order of assessment and limitation.
2. Validity of the notice for assessment under Section 42(2) of the OVAT Act.

Issue 1: Antedated order of assessment and limitation
The petitioner, a proprietorship concern dealing with Foot Wear on a wholesale basis, challenged the assessment order dated 12.01.2007 by the Sales Tax Officer, Cuttack-1 Range, Cuttack. The petitioner contended that the order was antedated and barred by limitation, as it was issued with an inordinate delay of approximately 24 months. The Court referred to judicial precedents, including a Supreme Court case, emphasizing that orders must be served within a reasonable time. The lack of explanation for the delay led the Court to conclude that the assessment order was not made on the purported date, rendering it invalid due to the delay.

Issue 2: Validity of the notice for assessment under Section 42(2) of the OVAT Act
The Court analyzed Section 42 of the OVAT Act, focusing on sub-sections (1) and (2) which outline the procedure for audit assessment. Sub-section (2) mandates a minimum period of thirty days for the production of relevant books of account and documents. The Court emphasized that statutory provisions must be strictly followed, citing legal principles that require adherence to specified procedures. In this case, the notice for assessment issued to the petitioner did not allow the minimum required time for production of documents, violating the mandatory provisions of Section 42(2) of the OVAT Act. Consequently, the Court held that the notice for assessment was invalid, rendering the order of assessment passed based on such notice as legally unsustainable.

In conclusion, the Court quashed the impugned order of assessment dated 12.01.2007 and the consequential demand notice for the specified period, ruling in favor of the petitioner. The writ petition was allowed without any order as to costs.