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TMI Blog2015 (3) TMI 342X X X X Extracts X X X X X X X X Extracts X X X X ..... ct 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 pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2(2) of the OVAT Act. It was submitted that if the statute requires to do a thing in a particular manner, the authority is to follow the same. In support of his contention that the assessment order was passed beyond the period of limitation, Mr. Jena relied upon the judgment of the Hon'ble Supreme Court and the Andhra Pradesh High Court. 4. Mr. Kar, learned Standing Counsel for Commercial Taxes Department supported the order of assessment to be valid and legal. 5. On the rival contentions of the parties, the following questions fall for consideration by this Court:- (i) Whether the order of assessment has been antedated and passed beyond the period of limitation? (ii) Whether notice dated 30.12.2006 issued in Form VAT- 306 for production of books of account and documents for assessment of the tax without complying with the mandate of sub-section (2) of Section 42 of the OVAT Act by not allowing the minimum period of 30 days for production of books of account and documents vitiates the assessment proceeding? (iii) What order? 6. Question No.(i) is whether the order of assessment has been antedated and passed beyond the period of limitation. To deal with this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d nor any explanation has been given by the respondent, as no counter is filed. Therefore, there is a strong apprehension that in order to give an impression that the impugned order was passed within the period of limitation; the order bears the date May 17, 1996, whereas it has been passed much after that. In this connection, the learned Counsel for the appellants has placed reliance on a judgment of the Hon'ble Supreme Court in State of Andhra Pradesh Vs. M.Ramakishtaiah Co. [1994] 93 STC 406, wherein under similar circumstances, the Supreme Court held that in the absence of any explanation, whatsoever, for delayed service on the petitioner, of the order, the court should presume that the order was not made on the date it was purported to have been made. 9. In the instant case, 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 bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer is bound to allow minimum thirty days time for production of books of account and documents. On a plain reading of sub-section (2), it further reveals that discretion is vested on the Assessing Officer to allow time more than thirty days for production of books of account, but he has no jurisdiction to allow less than thirty days' time for production of books of account. 13. Law is well-settled that when the statute requires to do certain thing in certain way, the thing must be done in that way or not at all. Other methods or mode of performance are impliedly and necessarily forbidden. The aforesaid settled legal proposition is based on a legal maxim Expressio unius est exclusion alteris meaning thereby that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner and following other course is not permissible. [See Taylor v. Taylor, (1876) 1 Ch.D.426; Nazir Ahmed v. King Emperor, AIR 1936 PC 253; Ram Phal Kundu v. Kamal Sharma; and Indian Bank's Association v. Devkala Consultancy Service, AIR 2004 SC 2615, Gujarat Urja Vikas Nigam Ltd. -v- Essar Power Ltd., (2008) 4 SCC 755)]. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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