1. The assesses is before this Court questioning the correctness of the assessment order dated 19.6.2010 passed by the Assessing Authority, Bhubaneswar-III Circle, Bhubaneswar without availing the alternative remedy of appeal provided under Section 77 of the Orissa Value Added Tax Act, 2004 (in short 'OVAT' Act, 2004).
2. Placing strong reliance on the mandate of Section 54 of the Act, learned counsel for the petitioner submits that the Assessing Authority has not given effect to the benefit of Rs.1,31,28,321/-, the amount towards the T.D.S. payment on the ground that the T.D.S. certificates are not in proper format and some of the T.D.S. certificates are not submitted in original though as indicated in the order to the extent that the Assessing Officer had sought for verification of T.D.S. certificates submitted by the Assessee from various Assistant Commissioners of Commercial Taxes of different circles mentioned in his letter dated 8.4.2010, Annexure-4, but had not received response there from.
3. We have perused the petitioner's averments, the order of assessment, the documents produced and the circulars issued by the Commissioner of Commercial Taxes under Section 52 produced under Anenxure-6 series with regard to the deduction of tax and deposit of the same. It is contended that after deducting the tax, the deducting authorities are required to issue T.D.S. certificates and the same is required to be maintained by them in a register making proper entry. Therefore, it is the duty of the Assessing Officer, in absence of non-production of T.D.S. certificates, to cross-verify the claim of the assessee with reference to the register maintained with regard to the T.D.S. effected by the authorities under different circles, but that has not been done in the present case, though the Assessing Officer had sought for verification vide Annexure-4 dated 8.4.2010.
4. Learned Standing Counsel for the revenue justifies the assessment order and the consequential order of demand contending that an assessee, who claims adjustment of T.D.S. is required to produce the original of the same before the Assessing Officer to get the benefit of the said deposit while submitting his returns. That has not been done in the instant case. Considering the fact that the assessee had not produced the originals as well as not in proper format, he submits that the order of assessment does not call for any interference. He further submits that since the Assessing Officer was required to pass the order of assessment within a period of six months and that period was soon going to expire, hence the order of assessment had to be passed. Therefore, the action of the Assessing Officer cannot be said to be illegal and the demand was raised since the assessee had not discharged his responsibility by producing the T.D.S. certificate in the prescribed format and the originals. Hence, he has prayed for dismissal of the writ petition.
5. With reference to the above rival and legal contentions, we have carefully examined the assessment order. The Assessing Officer has listed the numbers of the T.D.S. certificates which have not been produced in 'proper format' and the 'original certificates' were not produced. He has claimed the benefit of T.D.S. at the time of fixing the liability under the VAT on the basis of the returns submitted.
6. The claim of the petitioner was examined by the Assessing Officer on the basis of the documents produced and certain benefits have been granted, but due to non- production of T.D.S. in the prescribed format of VAT Act and original certificates, he has rejected the benefit claimed to the extent of Rs.1,31,28,321/- which is not tenable for the reason that, the Assessing Officer had written letter to the various Assistant Commissioners of Commercial Taxes for cross- verification with reference to the claim made by the assessee. He should have got the said particulars by issuing reminders to them and, thereafter should have passed the order of assessment. Not doing so, he has proceeded to pass the order of assessment since the limitation of six months under Section 42 of the OVAT Act was going to expire. Therefore, the order of assessment is bad. The Assessing Officer could have sought for another six months by resorting the proviso of the said Section since he was awaiting verification by the different Assistant Commissioners of Commercial Taxes with regard to the receipt of T.D.Ss and also certificate produced before Assessing Officers. This aspect has been overlooked by the Assessing Officer and has raised the tax liability without awaiting for proper verification from the different Assistant Commissioners of Commercial Taxes as required under law.
7. It is necessary to make an observation to the effect that Rule-59 of the OVAT Rules, 2005 read with section 54 of the Act empowers the Commissioner to issue certificates/instructions to various Assessing Officers for the purpose of passing the assessment order. The Tax Deducting Authorities are liable to issue certificates in favour of the contractors from whom tax was deducted at source and to send a copy thereof to the "Assessing Authority within whose jurisdiction the works contract is executed" and the said rule also contemplates that the Tax Deducting Authorities are also required to furnish a consolidated statement of tax deducted during a month in form VAT 605-A on or before 14th day of the succeeding month to the concerned Assistant Commissioner or Sales Tax Officer having jurisdiction. In that view of the matter the Assessing Officer is justified in asking for verification of certificates for the purpose of passing the assessment order. That has not been done in the present case.
8. In view of the above, the impugned order of assessment Annexure-2 and the consequent demand is bad in law and is, therefore, quashed. The matter is remitted back to the Assessing Officer for fresh assessment after getting proper verification and also the assessee may produce the original T.D.Ss obtained by him. If the originals are not available with him, he has to file declaration as required under law. The petitioner is directed to appear before the Assessing Officer within three weeks from today. The Assessing Officer shall complete the inquiry within a period of eight weeks thereafter. The writ application is allowed.