HIGH COURT OF ORISSA: CUTTACK W.P.(C) No.20514 of 2010 In the matter of an application under Articles 226 and 227 of the Constitution of India. -------- M/s. Penguin Paper Plast Pvt. Ltd., C-11 & B-15, Industrial Estate, Rourkela, Sundargarh … Petitioner -Versus- The Commissioner of Commercial Taxes, Orissa, Banijyakar Bhawan, Buxibazar, Cuttack & Others … Opp. Parties For Petitioner : M/s. Damodar Pati, S. Mishra, D. Panigrahi, S.Ch. Agarwal, G.C. Patri, S.C. Agarwal & H.C. Sahu. For Opp.Parties : Senior Standing Counsel Commercial Tax Department. ---------- P R E S E N T: THE HONOURABLE THE CHIEF JUSTICE SHRI.V.GOPALA GOWDA AND THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Date of hearing & Judgment : 03.01.2011 B.N. MAHAPATRA, J. In the present writ petition, the petitioner assails the order of assessment dated 21.10.2010 passed by opposite party No.2-Deputy Commissioner of Sales Tax, Rourkela-II Circle, Udit Nagar, Rourkela, Dist: Sundargarh (for short, “Assessing Officer”) for the period 01.07.2006 to 30.06.2008 under the Central Sales Tax Act, 1956 (for short, “CST Act”) and Rule 15 of the Central Sales Tax (Orissa) Rules, 1957 (for short, “CST(O) Rules”) on the ground that the said order is barred by limitation in terms of Rule 12(3)(h) and (i) of the CST (O) Rules; contrary to the provisions contained in CST Act, Orissa Value Added Tax Act, 2004 (for short, ‘OVAT Act’) and violative of Article 14 of the Constitution of India. 2. The facts and circumstances giving rise to the present writ petition are that the petitioner is a private limited company having its registered office at Industrial Estate, Rourkela, Dist: Sundargarh. It manufactures corrugated cardboard boxes and HDPE bags. It carries on business of manufacturing and selling of goods both on inter-state and intra-state basis. It is a registered dealer under the OVAT Act, CST Act and OET Act. Originally on 16.01.2010 the petitioner was assessed under the CST Act and Rules framed thereunder for the period 01.07.2006 to 30.06.2008. The petitioner challenged the said order in W.P.(C) No.10879 of 2010 inter alia on the ground that the assessment order was barred by limitation in terms of Rule 12(3)(h) of the CST (O) Rules. The said writ petition was allowed and the impugned order dated 16.01.2010 was quashed and the matter was remanded back to the Assessing Officer to exercise power under proviso to clause (h) of sub-rule (3) of rule 12 of the Rules and thereafter pass fresh order of assessment by recording reasons within eight weeks from the date of receipt of that order. The petitioner was directed to appear before the Assessing Officer on 23.08.2010. Pursuant to the said order, the petitioner appeared before the Assessing Officer and contended that no prior permission was taken from the Commissioner of Commercial Taxes for completion of assessment within the period stipulated under rule 2 12(3)(h) of CST(O) Rules. Since in spite of several opportunities, the dealer/petitioner did not produce books of accounts, the learned assessing officer passed the impugned assessment order on 21.10.2010 for the period 01.07.2006 to 30.06.2008 under the CST Act read with Rule 12(3) of the CST(O) Rules on the basis of materials available on record. Being aggrieved by such order, the petitioner has filed the present writ petition. 3. Mr.D.Pati, learned counsel appearing on behalf of the petitioner submits that prior permission was not taken from the Commissioner for completion of the assessment within the period stipulated under Rule 12(3) (h) of the CST (O) Rules. No reason is also available in the assessment order or in the order sheet for completing the assessment belatedly. Non- compliance of the mandatory provisions being non-curable one has fatal consequence. The statutory period for the purpose of exercising power under Rule 12(3)(h) of the CST (O) Rules expired on 30.12.2009. The power conferred under the proviso to rule 12(3)(h) of the CST (O) Rules was not exercised prior to 30.12.2009. By the time the petitioner filed writ petition, i.e., on 23.06.2010, the limitation under the proviso to Rule 12(3)(h) of the CST (O) Rules had already expired i.e. on 31.05.2010. The provisions of clause (i) of sub rule (3) of Rule 12 of the CST (O) Rules forbids assessment after one year from receipt of the audit visit report and in the instant case, no assessment would be possible after 31.05.2010. Opposite parties are divested with the jurisdiction to make any assessment after 31.05.2010. 3 The petitioner filed a writ petition on 23.06.2010. During the period 23.06.2010 to 02.08.2010, when the writ petition was pending before this court, the proceeding was not covered by any stay order. The petitioner also relied upon certain judicial pronouncements in respect of his contention that the period of limitation prescribed by the statute cannot be extended by the Court. 4. Mr. Kar, learned counsel appearing for the O.P.-Department submits that the factual and legal contentions raised by the petitioner now were raised earlier before this Court at the time of hearing of W.P.(C). No.10879 of 2010. This Court considering all the contentions raised by the petitioner, disposed of the said writ petition on 02.08.2010 with a direction to the Assessing Officer to exercise power under proviso to clause (h) of sub-rule (3) of Rule 12 of the CST (O) Rules, and pass a fresh order of assessment by recording reasons within eight weeks from the date of receipt of that order. Therefore, the petitioner is precluded from agitating the same points either before the Assessing Officer or before this Court. Mr. Kar further submits that the points now raised before this Court with regard to limitation were also raised before the Assessing Officer and the Assessing Officer has dealt with those in detail in the impugned assessment order. 5. Now, the question that falls for consideration is as to whether in the facts and circumstances of the case it is permissible to the petitioner to raise the same questions before the Assessing Officer as well as this 4 Court which he had raised in its earlier writ petition bearing W.P.(C) No.10879 of 2010 and considering the same this Court, vide order dated 02.08.2010, remanded the matter to the Assessing Officer for fresh assessment. 6. To deal with the above question, it is felt necessary to extract here the relevant portion of the order of this Court dated 02.08.2010 passed in W.P.(C). No.10879 of 2010. “7. It is also necessary for us to refer to clause (h) of sub-rule (3) of Rule 12 of the Rules which provides that the Assessing Officer is required to see that the assessment shall be completed within a period of six months from the date of receipt of the audit visit report. The Proviso to the said clause (h) of sub-rule (3) of rule 12 enables him to obtain such further time not exceeding six months for completion of the assessment proceeding from the Commissioner. Therefore, that proviso if read along with clause (i) of sub-rule (3) of rule 12, which provides for maximum period of one year from the date of receipt of audit visit report for completion of assessment. By careful reading of the proviso to clause (h) of sub-rule (3) of rule 12 and clause (i) of the aforesaid sub-rule, it is abundantly clear that the Assessing Authority is empowered to pass an order within a year by concluding the proceeding from the date of receipt of the audit visit report. 8. In the instant case as it is seen from the assessment order, from the date of receipt of the audit report dated 1.6.2009, the order was passed on 16.1.2010, the same would be less than a year from the date of receipt of the order, but the Assessing Officer was required to exercise the power under the proviso to clause (h) of sub-rule (3) of rule 12 of the Rules. That reasoning is not forthcoming in the order of assessment impugned in this writ petition. 9. Therefore, the said order of assessment impugned is liable to be quashed and the matter is required to be remitted back to the Assessing Officer, to exercise his power as provided under proviso to clause 5 (h) of sub-rule (3) of rule 12 of the Rules for the reason that the order of assessment is passed and concluded within a year from the date of receipt of the audit visit report. We have remanded the matter to the assessing officer to exercise his power as this petition is filed on 21.6.2010 and pending till this date. The above aspect also may be kept in view to pass order afresh in accordance with law. 10. The writ petition is allowed and the impugned order dated 16.1.2010 passed by the Assistant Commissioner of Sales Tax, Rourkela-II Circle, Udit Nagar, Rourkela (O.P. No.2) is quashed and the matter is remanded back to the Assessing Officer to exercise his power under proviso to clause (h) of sub-rule (3) of rule 12 of the Rules and thereafter pass fresh order of assessment by recording reasons, within eight weeks from the date of receipt of this order. The petitioner shall appear before the Assessing Officer on 23.08.2010.” 7. Perusal of the above order dated 02.08.2010 as well as the impugned assessment order and grounds taken in the present writ petition reveals that the petitioner virtually raised the same questions which it had raised before this Court in the earlier writ petition bearing W.P.(C) No.10879 of 2010 wherein the original assessment order dated 16.01.2010 was challenged. Considering the various factual and legal contentions urged by learned counsel for the petitioner in the earlier writ petition bearing W.P.(C) No.10879 of 2010, this Court had remanded the matter to the assessing officer for passing fresh order of assessment by recording reasons within eight weeks from the date of receipt of that order. The said order of this Court dated 02.08.2010 has neither been challenged by way of appeal nor any review petition has been filed questioning correctness of the said order. Thus, the said 6 order dated 02.08.2010 attained finality as regards the point of limitation in terms of Rule 12(3)(h) and (i) of the CST (O) Rules and the petitioner is not permitted to raise the same questions either before the assessing officer or before this Court. 8. In view of our above finding, judgments of the apex Court and this Court relied upon by Mr. Pati on the point of limitation are of no help to the petitioner. 9. In the fact situation, the present writ petition being devoid of any merit is dismissed. However, it is open for the petitioner to prefer appeal against the impugned order of assessment if so advised before the first appellate authority raising all its grievances except the point of limitation with regard to completion of the assessment order. If such an appeal is filed within four weeks from today, the same shall be considered by the appellate authority keeping in view the fact that this matter is pending before this Court since 26.11.2010. No order as to costs. ……………………... B.N.Mahapatra, J. …....……………….. Chief Justice 7 Orissa High Court, Cuttack Dated 3rd January, 2011/skj