DELHI FOOT WEAR Vs. SALES TAX OFFICER

JUDGEMENT

(1.) This writ petition has been filed with a prayer for quashing the order of assessment dated 12.01.2007 passed by the Sales Tax Officer, Cuttack-1 Range, Cuttack under Annexure-1 on the ground that the said order is barred by limitation and has been passed without complying with the statutory requirement of Section 42(2) of the OVAT Act.

(2.) Petitioner's case in a nutshell is that it is a proprietorship concern dealing with Foot Wear on wholesale basis. It is a registered dealer under the Orissa Value Added Tax Act, 2004 (for short, 'OVAT Act'). The Sales Tax Officer, Vigilance, Cuttack Division, Cuttack conducted audit investigation at the business premises of the petitioner for the tax period from 01.04.2005 to 31.07.2006 on 12.07.2006. Audit visit report dated 21.07.2006 was submitted before the opposite party No.3-Assistant Commissioner of Sales Tax, Cuttack-1 Range, Cuttack vide letter No.317 dated 22.07.2006 for completion of assessment under Section 42 of the OVAT Act. Basing upon such report, a proceeding under Section 42 of the OVAT Act was initiated by opposite party No.2-Sales Tax Officer, Cuttack I Range, Cuttack by issuing notice in Form VAT 306 dated 30.12.2006 enclosing the audit visit report for the tax period from 01.04.2005 to 31.07.2006 fixing the date to 12.01.2007. Thereafter, opposite party No.2- STO passed the assessment order on 12.01.2007 under Section 42 of the OVAT Act for the tax period from 01.04.2005 to 31.07.2006 and the said order was issued vide Memo No.8041 dated 31.12.2008, which was received by the petitioner on 03.01.2009. Hence, the present writ petition.

(3.) Mr.P.K. Jena, learned counsel for the petitioner submitted that the impugned order of assessment passed under Annexure-1 is not sustainable in law as the said order of assessment has been antedated and that the notice was issued to produce the books of account to make the audit assessment without allowing the statutory period of 30 days as provided under Section 42(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.