B.P.ENTERPRISES Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS writ petition has been filed challenging the order of assessment dated July 3, 2008 passed by the assessing authority (Sales Tax Officer, Cuttack - II Circle, Cuttack) under the provisions of the Orissa Value Added Tax Act, 2004 (hereinafter called "the OVAT Act") and Orissa Value Added Tax Rules, 2005 (hereinafter called "the Rules, 2005").

(2.) THE facts and circumstances giving rise to the case are that the petitioner is a registered dealer under the provisions of the OVAT Act and has also been allotted a TIN number. It carries on business of manufacturing of aluminium utensils for sale. It submitted the return before the Sales Tax Officer, Cuttack - II Circle, Cuttack (hereinafter referred to as "the assessing authority") as per the provisions under section 33 of the OVAT Act read with proviso to rule 34(8) of the Rules, 2005 for the tax period April 1, 2005 to November 30, 2006. The petitioner's business has been audited under the OVAT Act on November 22, 2006 and it was reported with the detection of suppression of purchase and sale of Rs. 16,71,847 resulting from verification of physical stock of the items taken on November 22, 2006 with its books of account and finding discrepancies on various items. The petitioner was served with the notice dated June 16, 2007 (annexure 1) to appear for hearing for the purpose of assessment on the basis of audit report. The petitioner was heard. However, the said assessing authority passed the order impugned dated July 3, 2007 on the basis of audit report and held that the assessee was liable to tax and penalty together to the tune of Rs. 7,68,114 and after making the adjustment of the amount already deposited by it, it was directed to make the payment of the balance amount of Rs. 6,83,789 as per the terms and conditions of the demand notice of the same date (annexure 2). Hence this writ petition.

(3.) ON the contrary, Shri R. P. Kar, learned counsel appearing for the Revenue, has submitted that rule 49(3) of the Rules, 2005 provides that a dealer, if so desires, must raise objections before the authority assessing it, in all respects and produce such other evidence and document in support of his claim. In the instant case, as the dealer has not raised any objection, but submitted to his jurisdiction and invited the assessment order, it cannot be permitted to agitate this issue any further. More so, the authority was bound to assess and pass the assessment order as the maximum period of six months is prescribed under section 42(6) of the OVAT Act and in exceptional circumstances the period can be extended for further six months by the Commissioner only. In case the order so passed is set aside and is remanded to the competent authority for adjudication afresh, period of limitation would not apply and that is the reason for which the assessee did not take the objection to the issue of jurisdiction. In the meantime they get sufficient period to utilize the public fund. More so, order is appealable, but to avoid the pre -deposit condition of 20 per cent as required under section 11 of the OVAT Act, instead of filing the appeal this writ petition has been filed. Therefore, the petitioner cannot be permitted to take the benefit of its own mistake. Moreover, no prejudice has been caused to the assessee by the order of the said assessing authority. The petition is liable to be dismissed.