R.K.Datta Chaudhuri, Judicial Member -
(1.) IN this application under Section 8(1) of the West Bengal Taxation Tribunal Act, 1987 the petitioner prays for setting aside the order of assessment dated May 12, 2008 and consequential demand notice of same date for the fourth quarter ending March 31, 2006 on the grounds that the impugned assessment order was void and it was back dated order passed after the period of limitation. The petitioner received the copy of the impugned assessment order with the notice of demand on December 5, 2009 under memo dated November 28, 2008 and posted on February 3, 2009 requiring payment by February 9, 2009. But no notices had been given to him for the hearing dated May 12, 2008. On the adjourned date April 23, 2008 there was no hearing and no order was passed on the date. He contended that from the face of the order it appeared that (i) May 12, 2008 was taken as date of hearing and no notices thereto had been served ; (ii) from overwriting of the date May 12, 2008, inordinate delay in despatching the postal cover of demand notice ; an abnormal time given for payment ; it had to be inferred that the assessment was back dated and the same was barred by limitation.
(2.) RESPONDENT No. 1 contested the application by filing AO supporting the impugned assessment order denying the allegation of non -service of notice and overwriting of the date of order May 12, 2008. He asserted that April 23, 2008 was the last date of hearing and May 12, 2008 was fixed for order. The respondent did not produce anything to say that an order was passed in the assessment folder on April 23, 2008 which was an adjourned date of hearing as per order dated March 24, 2008. The impugned order dated May 12, 2008 starts with the writing, "the dealer was given three opportunities to appear for hearing. But none appeared till date. No petition is filed". Undisputed photocopy of the order sheets containing order dated February 14, 2008 and March 24, 2008 and of the impugned assessment order dated May 12, 2008 indicates that no orders were passed on April 23, 2008. So the petitioner's version that on the adjourned date April 23, 2008, there were no hearing has to be accepted. The impugned ex parte assessment order indicates that May 12, 2008 was fixed for hearing. When no order was passed on April 23, 2008 and nothing was shown to suggest that the notice of hearing on May 12, 2008 had been communicated to the petitioner, it has to be held that the petitioner was not given opportunity of being heard in the assessment proceeding held on May 12, 2008 and for this reason the impugned assessment order is liable to be set aside.
(3.) FROM the face of the impugned order the figure of the date and month of the order appears to be overwritten. It is clear that figure 10 was made 12. 10th May of 2008 was Saturday and it was a weekly off day of the office of the respondents. 10th July of 2008 was a week day. In all probability the assessing officer was going to write 07 and the same was overwritten as 05. The postal cover containing the demand notice along with the impugned assessment order was sent under memo Nos. 3862 and 3863 dated November 28, 2008. It bears stamp of Dharmatala Post Office (Kol -13) of February 5, 2009 and of the despatching post office on February 3, 2009. It took more man six months' time for sending the demand notice to the despatch section and 68 days' time to post the cover. These abnormal delays were not explained. The learned advocate for the petitioner Sri Boudhayan Bhattacharyya relying on the judgment of this Tribunal in the case of the West Bengal Small Industries Development Corporation Ltd. v. CCT, W. B. reported in  40 STA 42, Mafatlal Industries Ltd. v. C. T. O. reported in  101 STC 461 (WBTT) ;  29 STA 295 and of the honourable Supreme Court in the case State of Andhra Pradesh v. M. Ramakishtaiah & Co. reported in  93 STC 406 submitted that the fact of this case suggests that the impugned order is back dated and the assessment was not made within the period of limitation. The aforesaid West Bengal Small Industries Development Corporation Ltd. v. CCT, W. B. 40 STA 42 was based upon the judgment of the honourable Supreme Court in State of Andhra Pradesh v. M. Ramakishtaiah & Co. reported in, (1994) 93 STC 406 as well as of this Tribunal in Mafatlal Industries Ltd. v. C. T. O. reported in, (1996) 101 STC 461 (WBTT);, (1996) 29 STA 295. In the case Mafatlal Industries Ltd. v. C. T. O. reported in, (1996) 101 STC 461 (WBTT);, (1996) 29 STA 295 the second appellate order from the original assessment for fourth quarter ending March 31, 1975 was made on December 27, 1989 but the demand notice was served on November 1, 1994 after expiry of the period of four years from December, 1989. The respondents' case was that the notice of demand was served late due to inadvertence and overlooking, though the same was ready earlier with the passing of the assessment order. The Bench of this honourable Tribunal on perusal of the records submitted by the respondent found that hearing of the assessment case was concluded on August 28, 1993, the next order sheet contained the order dated August 25, 1993 showing the impugned assessment and thereafter there was an order dated October 6, 1994 stating that the demand notice in form VII was not issued and accordingly it should be issued immediately. The issue register of 1993 did not show that any demand notice was ready for despatch bearing the memo number dated October 1, 1993. So the honourable Bench of this Tribunal was not satisfied that the assessment order was made on August 25, 1993 and hence held that the applicant was entitled to a presumption to the effect that the assessment order was not made within the period of four years of limitation from December 27,1989 on the basis of the fact that the demand notice was served on November 1, 1994. In this case, this Tribunal followed the principle laid down in the case of State of Andhra Pradesh v. M. Ramakishtaiah & Co. reported in, (1994) 93 STC 406 (SC). The fact was that the assessment order was passed in September, 1969 which was sought to be revised under Section 20(2) of the A. P. Act, 1957. The revisional order was passed against the assessee appearing as if the order had been made on January 6, 1973 but it was served on the assessee on November 21, 1973, i.e., 10 and half months after making the impugned revisional order that was beyond four years from the date of the original assessment order in September, 1969. On such facts the honourable Supreme Court held that in absence of the explanation whatsoever, the court must presume that the order was not made on the date it purported to have been made and that it could have been made after expiry of the period of four years prescribed for such an order in revision. On the basis of such a presumption which was not explained the honourable Supreme Court held that the order was bad. The aforesaid decision of the honourable Supreme Court and of this Tribunal apply on the fact of this case as there were inordinate delay in sending the demand notice along with the copy of the assessment order for service, in passing explanation thereof it should be presumed that the impugned assessment order was not passed on the date it is claimed. The impugned order was claimed to have been sent to the despatch section vide memo Nos. 3862 and 3863 dated November 28, 2008. If it were as such it should be held that the impugned order was made within the period of limitation because by amendment the period of limitation for assessment as provided in Section 49 of the West Bengal VAT Act, 2003 was extended up to November 30, 2008. In obedience with our direction, the Revenue produced the Issue Register for the period from April 1, 2008 to April 2, 2009 containing serial Nos. 1 to 6273 of the office of respondent No. 1, Sales Tax Officer, New Market Charge. It reflects a horrible affair of the office of respondent No. 1 in the matter of maintaining the issue register. On each of the dates of entries in the middle and end thereof, the spaces for the particulars against many serial numbers are left blank. This practice of leaving spaces blank in the issue register raises doubt about the correctness of the dates of issue of the articles mentioned therein. In all the dates the number of demand notices issued were between 2 and 4 except for October 27, 2008 and November 28, 2008 on which the number of demand notices in form 27 along with in form 4 issued were 11 and 225, respectively. Issue 225x2 demand notices on one day is abnormal. The cover of the impugned notice was posted 66 days after the recorded date of issue. So the date of issue recorded in the issue register is not believable. In the demand notice the date of payment was given as February 9, 2009 about 72 days after the date of the aforesaid memo whereas Sub -rule (2) of rule 9 of the West Bengal VAT Rules, 2005 requires at least 30 days time from the date of service of the notice for the payment. The notice was sent by speed post for service within Kolkata. So it could not be expected that it should take more than seven days' time. For the service of the notice fixing the date of payment after such a longer period is unusual so the presumption would be that the impugned assessment order was made on a date claimed to be the date of sending the notice to the post office for service. The date of posting is February 3, 2009 which is 64 days after the date of expiry of the period of limitation. So in view of the aforesaid decision of the honourable Supreme Court it should be held that the impugned order was passed beyond November 30, 2008, i.e., the impugned assessment order was barred by limitation.;