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TMI Blog2015 (11) TMI 1495X X X X Extracts X X X X X X X X Extracts X X X X ..... e been made. In order to give an impression that the impugned order of assessment was passed within the period of limitation, the order bears the date 18.6.2008 whereas it has been passed much later that. - Decided in favour of assessee. - W. P. (C) No. 165 of 2009 - - - Dated:- 26-11-2014 - MAHANTY I. AND MAHAPATRA B. N. JJ. M/s. Prakash Ku. Jana and S. C. Sahoo for the petitioner. R. P. Kar, Standing Counsel, for the respondent. JUDGMENT This writ petition has been filed with a prayer for quashing the order of assessment dated 18.6.2008 (Annexure-1) passed by opposite party no. 2-Assessing Authority under Section 42 of the Orissa Value Added Tax Act, 2004 (hereinafter referred to as OVAT Act ) for the tax period fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng for the petitioner submitted that as per sub-section (6) of Section 42 of the OVAT Act, an assessment under Section 42 of the OVAT Act shall be completed within a period of six months from the date of receipt of the Audit Visit Report, but the proviso to sub-section (6) says that if for any reason, the assessment is not completed within the time specified in sub-section (6) i.e. within six months from the date of receipt of the Audit Visit Report, the Commissioner may, on the merit of each such case, allow such further time not exceeding six months for completion of the assessment proceeding. Sub-section (7) of Section 42 provides that no order of assessment shall be made under sub-section (3) or sub-section (4) of Section 42 of the OVAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance of notice for assessment and therefore the same is not barred by limitation. In similar circumstances, this Court vide order dated 22.8.2013 in W.P.(C) No. 11647 of 2010 in the case of M/s. Chandramani Engineers v- Commissioner of Sales Tax quashed the order of assessment and remanded the matter back to the Assessing Officer to exercise his power under proviso to Rule 12 (3)(h) of the CST (O) Rules and thereafter pass fresh order of assessment by assigning reasons. Mr. Kar further submitted that due to clerical mistake, there has been a delay of four months in dispatching the order of assessment. Therefore, the allegation that the order of assessment has been antedated and passed after expiry of the period of limitation is not corr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1864 of 2007 disposed of on 9.10.2007 held that the period of limitation of six months shall run from the date of receipt of the Audit Visit Report by the assessee. Further contention of the Revenue is that since the assessment order has been passed within one year from the date of issuance of notice for audit assessment, the assessment is valid in law. It is true that the order of assessment has been passed within one year from 23.8.2007 i.e. the date of issuance of notice for audit assessment. However, being asked, it was fairly stated by Mr. Kar, learned Standing Counsel for the Revenue that permission of the Commissioner for completion of the assessment proceeding within a further period of six months as provided under proviso to sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... makishtaiah Co. [1994] 93 STC 406, wherein under similar circumstances, the Supreme Court held that in the absence of any explanation, whatsoever, for the 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. 10. In the instant case, there is no explanation for the delay of more than four months caused in issuing the assessment order to the petitioner except stating that due to clerical mistake there has been a delay of four months. Nothing has been stated in detail as to when the order of assessment has been handed over to the dispatch section and who is responsible for such delay. Therefore, we have no hesitation to hold that the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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