The Court : The petitioners claim that the audit proceedings are barred by limitation.
Learned advocate for the petitioners draws the attention of the Court to the audit notice. He submits that, after an audit of accounts was undertaken, it
was sought to be extended by a writing dated December 5, 2014. The audit was not completed within the extended period. The audit report was not
served upon the petitioner. He refers to the affidavit-in-opposition and submits that, there is no proof of receipt of the audit report by the petitioner.
At best there is a proof of despatch. Even such document is suspect. He relies upon Section 43(4) of the West Bengal Value Added Tax, 2003
(hereinafter referred to as the Act of 2003) and submits that, the time period specified therein an audit of accounts is six months with a further
extention of six weeks to be granted by the Commissioner. In the instant case, the extention was granted on December 5, 2013 for six months from
January 14, 2014. The audit was not completed within July 13, 2014. He refers the affidavit-in-opposition and submits that, even if the audit report is
taken on its face value, the same is beyond the period prescribed. He relies upon 1988 (69) STC 62 (Government Wood Works vs. State of Kerala),
AIR 1963 SC 395 (Bachhittar Singh vs. The State of Pubjab) and an unreported judgment and order dated January 20, 2015 passed by the Division
Bench in AST 420 of 2014 with CAN 11620 of 2014 (Calcutta Chromotype Private Limited vs. The Deputy Commissioner, Commercial Taxes in
support of his contentions.
Learned Additional Advocate General appearing for the respondents submits that, the audit was completed within the extended period as statutorily
permissible under Section 43(4) of the Act of 2003. He draws the attention of the Court to the audit report and submits that, the audit is dated July 10,
2014. Therefore, there is no infirmity in the audit report. He draws the attention of the Court to the Government Wood Works (supra) and submits
that, an audit report can be communicated subsequent to the passing of the same. In the present case, the audit report was passed within the statutory
time and was communicated subsequently.
Section 43 (4) of the Act of 2003 is as follows:
(3) The Commissioner shall, after considering all the evidence produced in course of the proceedings or collected by him, or to the best of his
judgement where the dealer has failed to comply with the notice [issued under sub-section (2)] prepare a report stating his observation therein
regarding the correctness of returns, admissibility of various claims of the dealer for the period for which such audit is madeâ€.
In the facts of the present case an audit account of the petitioner under Section 43(4) of the Act of 2003 was undertaken. The audit was not
completed within the first six months of its commencement. The period of conclusion of the audit was extended by a writing dated December 5, 2013.
The period was extended for a period of six months from January 14, 2014. The audit therefore, was required to be concluded within July 13, 2014 in
view of the provision of Section 43(4) of the Act of 2003.
The affidavit-in-opposition filed by the authorities discloses that, the audit report was made on July 10, 2014. Such audit report was within the period of
limitation prescribed under Section 43(4) of the Act of 2003. The petitioner contends that it did not receive the audit report. Non receipt of the audit
report within the time period specified under the Act of 2003 ipso facto does not invalidate such audit report. It cannot be said that, since, the audit
report was made available subsequent to the expiry of limitation prescribed under the Act of 2003, therefore, the audit is beyond jurisdiction or is
beyond limitation.
Calcutta Chromotype Pvt. Ltd. (supra) is of the view that, when the notice is not addressed to the correct address of the noticee, the same cannot be
taken to be served. The ratio of such judgment is not attracted in the facts of the present case. It is not the case of the parties that, the address of the
petitioner was given incorrectly.
Bachhittar Singh (supra) is in the context of the then Article 311 of the Constitution of India. It is of the view that, an order is required to be
communicated to the parties affected by it for that order to come into effect. On the strength of such ratio it cannot be said that, the audit report
stands invalidated by reason of statutory period of limitation.
Government Wood Works (supra) is of the view that an order even if signed and kept in the files will not become effective and complete until it is
served upon the person affected thereby. In the present case, there is proof of the present case, it cannot be said that the audit report will be rendered
to be beyond limitation simply on the ground that the despatch was beyond the period of limitation stipulated for the conclusion of the audit.
In such facts and circumstances, I find no merit in the present writ petition.
In view of the conduct of the petitioner it would be appropriate impose costs. W.P No. 9831 (W) of 2018 is dismissed with costs assessed at
Rs.50,000/- (Rupees Fifty thousand only). The petitioner will pay such costs within seven days from date to the West Bengal State Legal Services
Authority, Kolkata. The petitioner will deposit documentary evidence of payment of such costs with the Assessing Officer within ten days from date.
In default, the Assessing Officer shall be at liberty to realise such costs as arrears of land revenue from the petitioner, in addition to all other means of
recovery available to it for realizing arrears of tax.
Urgent certified website copy of this order, if applied for, be made available to the parties upon compliance of the formalities.
