COMMISSIONER OF SALES TAX ODISHA AND ORS VS M/S. ESSEL MINING AND INDUSTRIES LTD AND ANR

COMMISSIONER OF SALES TAX ODISHA AND ORS VS M/S. ESSEL MINING AND INDUSTRIES LTD AND ANR - Supreme Court Case 2022

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (C) DIARY NO. 29294 OF 2018
COMMISSIONER OF SALES TAX ODISHA AND ORS. ...PETITIONER(S)
VERSUS
M/S. ESSEL MINING AND INDUSTRIES LTD AND ANR. ...RESPONDENT(S)
WITH
SPECIAL LEAVE PETITION (C) NO. 21140 OF 2021
WITH
SPECIAL LEAVE PETITION (C) NO. 21104 OF 2021
WITH
SPECIAL LEAVE PETITION (C) NO. 2468 OF 2022
WITH
SPECIAL LEAVE PETITION (C) NO. 2466 OF 2022
ORDER
1. The Five Special Leave Petitions arising from the orders of the High Court of
Orissa are taken up for hearing on pure questions of law.
2. The questions arise in the context of Section 42(6) of the Orissa Value Added
Tax Act, 20041
. The first question is whether the power of the Commissioner to
allow further time of six months to the Assessing Authority to complete the audit
1 hereinafter referred to as ‘the Act’.
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assessment must be exercised before the Assessing Authorities time to conclude the
proceedings expire. The second question is whether an Assessing Authority could
pass the assessment order after the period of six months in expectation of the
Commissioner extending the time. The third and the last question is whether a
Commissioner could grant post-facto extension, ratifying the assessment order
passed beyond the period of six months. We may clarify here itself that it is nobody’s
case that the powers could be exercised by the Commissioner after one year (initial
period of six months for Assessing Authority coupled with the power of the
Commissioner to allow further six months).
Statutory Position
3.1 For proper appreciation of the issue, it is necessary to refer to the relevant
provisions of the Act. Section 41 prescribes the procedure for conducting the
assessment proceeding. Section 41(2) empowers the Commissioner to direct that a
tax audit be conducted in respect of certain dealer(s) as selected by him. Section 41(4)
provides that after completion of the tax audit, the officer authorized to conduct such
audit shall, within seven days from the date of completion of the audit, submit an
Audit Visit Report2
to the Assessing Authority, along with the relevant
statement/documents.
2 hereinafter referred to as ‘the AVR’.
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3.2 Section 42, with which we are concerned in this case relates to audit
assessment. Under Sub-section (1), the Assessing Authority may, when the tax audit
conducted under Section 41 results in the detection of suppression of certain
purchases, sales etc., issue a notice to the dealer with a copy of the AVR and require
him to appear in order to give an explanation. Under Sub-section (4), the Assessing
Authority may after causing such enquiry, assess the tax due from the dealer. Subsection (6), which falls for our consideration and interpretation is also followed by a
Proviso. While the sub-section provides for the audit assessment to be completed by
the Assessing Authority within a period of six months, the Proviso, on the other
hand, empowers the Commissioner, if for any reason the assessment is not
completed by the Assessing Authority within the time stipulated in the section, to
allow such further time not exceeding six months for completion of assessment
proceeding.
3.3 Section 42 is as under: -
“42. Audit assessment,
(1) Where the tax audit conducted under sub-section (3) of
section 41 results in the detection of suppression of
purchases or sales or both, erroneous claims of deductions
including input tax credit evasion of tax or contravention
of any provision of this Act affecting the tax liability of the
dealer, the assessing authority may, notwithstanding the
fact that the dealer may have been assessed under section
39 or section 40, serve on such dealer a notice in the form
and manner prescribed along with a copy of the Audit Visit
Report, requiring him to appear in person or through his
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authorised representative on a date and place specified
therein and produce or cause to be produced such books
of account and documents relying on which he intends to
rebut the findings and estimated loss of revenue in respect
of any tax period or periods as determined on such audit
and incorporated in the Audit Visit Report.
(2) Where a notice is issued to a dealer under sub-section
(1), he shall be allowed time for a period of not less than
thirty days for production of relevant books of account and
documents.
(3) If the dealer fails to appear or cause appearance, or
fails to produce or cause production of the books of
account and documents as required under sub-section (1),
the assessing authority may proceed to complete the
assessment to the best of his judgement basing on the
materials available in the Audit Visit Report and such
other materials as may be available and after causing such
enquiry as he deems necessary.
(4) Where the dealer to whom a notice is issued under subsection (1), produces the books of account and other
documents, the assessing authority may, after examining
all the materials as available with him in the record and
those produced by the dealer and after causing such other
enquiry as he deems necessary, assess the tax due from
that dealer accordingly.
(5) Without prejudice to any penalty or interest that may
have been levied under any provision of this Act, an
amount equal to twice the amount of tax assessed under
sub-section (3) or sub-section (4) shall be imposed by way
of penalty in respect of any assessment completed under
the said sub-sections.
(6) Notwithstanding anything contained to the contrary in
any provision under this Act, an assessment under this
section shall be completed within a period of six months
from the date for receipt of the Audit Visit Report:
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Provided that if, for any reason, the assessment is not
completed within the time specified in this sub-section,
the Commissioner may, on the merit of each such case,
allow such further time not exceeding six months for
completion of the assessment proceeding.
(7) No order of assessment shall be made under subsection (3) or sub-section (4) after the expiry of one year
from the date of receipt of the Audit Visit Report.”
3.4 In the year 2010, an amendment was carried out to the sub-section. After the
said amendment, Section 42(6) reads as follows: -
“(6) Notwithstanding anything contained to the contrary
in any provision under this Act, an assessment under this
section shall be completed within a period of six months
from the date of service of notice issued under subsection (1) along with the Audit Visit Report:”
3.5 Another amendment to Section 42(6) was brought in the year 2015. This
amendment introduced a second Proviso to Section 42(6) and also deleted subsection (7) to Section 42. Though it is not necessary to refer to the second Proviso,
as it has no bearing on the facts of the cases, for having a complete idea of the
legislative changes, we may just take note of it and proceed further. The Proviso is
as under: -
“Provided further that if the Commissioner feels it
necessary to do so for good and sufficient reasons, he may
allow such further time not exceeding another six months
beyond the time allowed under the first proviso for
completion of the assessment proceeding.”
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Facts in the case of Essel Mining and Industries Ltd.
4.1 The AVR was made on 20.04.2007 and the notice of the same was received
by the Assessee on 14.05.2007. It is now settled that the date of receipt of the AVR
by the assessee should be the date for reckoning the period of six months.3 So, the
six months period calculated from 14.05.2007 ended on 13.11.2007. Before the
expiry of the said period, the Assessing Authority made an application dated
24.10.2007 to the Commissioner seeking extension of time by six months under the
Proviso to Section 42(6). The extension was granted on 16.11.2007, that is three
days after the initial period of six months. Thereafter, the Assessing Authority,
proceeded further and passed the assessment order on 31.12.2007. We may note
that the assessment order dated 31.12.2007 is in any event within a period of one
year commencing from 14.05.2007. The assessment order found tax due amounting
to Rs. 4,67,96,731/-.
4.2 It is this assessment order which was challenged before the High Court and
the High Court allowed the Writ Petition on the sole ground that the extension of
time was granted by the Commissioner over telephone. Disapproving this method
of extending time, High Court held that the Commissioner was obliged to consider
3 By a series of orders passed by the High Court of Orissa (M/s. Tata Sponge Iron Ltd. v. Commissioner of Sales Tax,
Orissa & Ors., (2011) SCC OnLine Ori 49; M/s. Lalchand Jewellers Pvt. Ltd. v. Assistant Commissioner of Sales Tax,
Puri, W.P. 11864 of 2017), it is settled that the date of receipt of AVR by the Assessee shall be the date for reckoning
the period of six months of Section 42(6). In fact, in one of the orders impugned before us being, M/s Cobra
Instalaciones Y Servicios S.A., the High Court has also calculated the six-month period from the date of receipt of the
AVR by the Assessee.
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the request for extension on case-to-case basis depending on merit of each case
which necessarily postulates the assigning of reasons. In view of these findings, the
High Court allowed the Writ Petition, and the assessment order dated 31.12.2007
was quashed. The issue raised in these Special Leave Petitions was not argued
before the High Court in this case.
4.3 The Review Petition was filed stating that the conclusion of the High Court
that the extension granted telephonically is erroneous and in fact the order of the
Commissioner dated 16.11.2007 granting extension was produced. On
interpretation, it was also stated that the Commissioner’s power under Proviso to
Section 42(6) cannot be restricted to exercising it before the expiry of the period of
six months. The High Court dismissed the Review Petition, unfortunately after a
decade i.e., on 08.02.2018 on the ground of delay. The issue argued before us was
not considered even in the Review Petition. The first Special Leave Petition is
against this order.
Facts in the case of M/s Shreem Electric Ltd.
5. In this case, the AVR was served on the Assessee on 22.05.2014 and
therefore, the six months period for passing the assessment order was to expire on
22.11.2014. The Assessing Authority sought extension of time by letter dated
29.11.2014. There is no indication about the date or any order of extension of time
by the Commissioner. Eventually, the assessment order was passed on 19.05.2015.
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This is the order challenged in the Writ Petition before the High Court. We may
note that the assessment order, even in this case is within a period of one year
commencing from 22.05.2014. It was argued that the assessment order passed after
the mandatory period of six months has no validity, particularly when the
Commissioner did not even exercise the power to extend the time. High Court
allowed the Writ Petition on the simple ground that the matter is covered by the
decision of the same Court in the case of M/s Cobra Instalaciones Y Servicios S.A.,
which in turn followed the decision of this Court in State of Punjab v. Shreyans
Industries Ltd.4
. M/s Cobra Instalaciones Y Servicios S.A., is also listed before us,
we will now note the facts of that case.
Facts in the case of M/s Cobra Instalaciones Y Servicios S.A.
6. In M/s Cobra Instalaciones Y Servicios S.A., the AVR dated 20.06.2012 was
received by the Assessee on 01.10.2012 and therefore the six months period to
complete assessment expired on 31.03.2013. The order of assessment was not
passed within that date, but an application for extension was made before the expiry
of the six months period i.e., on 25.03.2013. Eventually, the assessment order came
to be passed on 15.05.2013, which nevertheless, is within a period of one year
commencing from 01.12.2012. It is after the said order that the Commissioner in
4 2016 (4) SCC 769.
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exercise of his powers under the Proviso to Section 42(6) granted post-facto
extension by six months on 20.07.2013. The assessment order dated 15.05.2013
was challenged in the Writ Petition. The High Court considered the matter in detail
and held that the Assessing Authority could not have presumed that the
Commissioner would grant an extension and, therefore, could not have passed the
assessment order in advance. Further, it was held that the Commissioner has to
exercise the power after applying its mind to the facts of the case before
mechanically granting an extension. Importantly, the High Court found no difficulty
in applying the decision of this Court in the case of Shreyans (supra) and held that
the Commissioner should have exercised the power of extension before the original
period of limitation expired on 31.03.2013. The third Special Leave Petition is
against the order.
Facts in the two cases of M/s Swastik Ingot (P) Ltd.
7. The AVR was made on 31.05.2013 and the same was received by the
Assessee on 02.07.2013. Therefore, the assessment order was to be passed by
01.01.2014, however, the same was passed only on 31.03.2014. It is for this reason
that the assessment order was challenged on the ground that it was not passed within
a period of 6 months from the date of receipt of AVR by the Assessee. Further, it
was also contended that the permission for extension was also sought after the
expiry of the six-month period. The High Court allowed the Writ Petitions by
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placing reliance on the decision in M/s Cobra Instalaciones Y Servicios S.A. The
fourth and fifth Special Leave Petitions are from these orders.
Submission before this Court
8.1 We have heard Shri Rakesh Dwivedi and Shri Ravi Prakash Mehrotra, Senior
Advocates assisted by Ms. Deepti R. Mehrotra, Shri Apoorv Srivastava, Shri
Prasenjit K. Chakravarti, Shri Jogy Scaria (AoR), Ms. Kirti R. Mishra (AoR), Ms.
Sansriti Pathak, Ms. Apurva Upmanyu, Mr. Aryan Tripathy and Ms. Monika
Dwivedi, Advocates appearing on behalf of the Petitioners. Shri Gopal Jain, Senior
Advocate, assisted by Ms. Vanita Bhargava, Shri Ajay Bhargava, Ms. Shweta
Kabra, Ms. Prerna Singh and M/s Khaitan & Co. (AoR) for the Respondents.
8.2 Learned counsels have addressed us only on the interpretation of Section
42(6), and its Proviso and on the issue as to whether the Commissioner could
exercise the power to grant extension of time after expiry of the initial period of six
months provided to an Assessing Authority for passing the order of audit
assessment.
9. While reserving the judgment, we had ordered that we will take up the first
matter for disposal and on the basis of the decision in the first matter, the other cases
will be listed for appropriate orders. However, in the first matter, as noticed earlier,
the issue argued before us was neither raised nor considered by the High Court. The
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decision of the High Court is confined only to the question as to whether extension
could be granted on telephone and whether there is an obligation on the part of the
Commissioner to give reasons before granting further time for the completion of
the assessment. Even in the order disposing of the Review Petition, the High Court
has not considered the issue that is raised and argued before us. For this reason, we
have to necessarily decide the issue in other Special Leave Petitions.
10. In all the Special Leave Petitions, apart from the first case of Essel Mining,
we have noticed that the High Court disposed of the Writ Petitions by following the
decision of this Court in the case of Shreyans Industries (supra). The most important
question for consideration is whether the issue arising for consideration in these
Special Leave Petitions are covered by the decision of this Court in Shreyans
Industries (supra). It is therefore necessary for us to consider the ratio in Shreyans
Industries (supra) and to see if it covers the issues arising in these batch of cases.
11. Decision in Shreyans Industries (supra) is by a Bench of three judges. The
case arose out of proceedings under the Punjab General Sales Tax Act, 1948. The
issue was whether the power to extend time is to be necessarily exercised before the
normal expiry of the said period of three years ran out.
12. Before we proceed further to appreciate the ratio, it is necessary to refer to
Section 11 of the Punjab General Sales Tax Act, 1948 which fell for consideration
in Shreyans Industries (supra). The Provision is as under: -
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“11. Assessment of tax. –
(1) If the Assessing Authority is satisfied without
requiring the presence of [dealer] or the production by
him of any evidence that the returns furnished in respect
of any period are correct and complete, [he shall pass an
order of assessment on the basis of such returns within a
period of three years from the last date prescribed for
furnishing the last return in respect of such period.
….
(3) On the day specified in the notice or as soon as
afterwards as may be, the Assessing Authority shall, after
hearing such evidence as the dealer may produce, and
such other evidence as the Assessing Authority may
require on specified points, [pass an order of assessment
within a period of three years from the last date prescribed
for furnishing the last return in respect of any period.
….
(10) The Commissioner may, for reasons to be recorded in
the writing, extend the period of three years, for passing
the order of assessment for such further period as he may
deem fit.”
13. After considering rival submissions, the Court considered similar provisions
of the Karnataka Sales Tax Act,1957 as well as the Gujarat Sales Tax Act,1969 and
after approving and following a decision of the High Court of Karnataka, this Court
observed as under: -
“21. Clause (b) of sub-section (6) indicates that Joint
Commissioner, in appropriate cases, may pass an order
for deferment of assessment order to be passed by the
assessing authority and once such an order is passed, that
period has not to be counted while computing the period
of limitation. Significantly, this provision also mandates
the Joint Commissioner to record reasons for deferring
the orders of assessment. In essence, therefore, the purport
and objective behind the provisions in the Punjab Act as
well as in the Karnataka Act remains the same. By making
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any order of deferment under sub-section (6) of Section 12
of the Karnataka Sales Tax Act, the Joint Commissioner
is, in fact, achieving the same purpose of granting more
time to the assessing officer to pass the assessment order.
Same is the purpose behind sub-section (11) of Section 10
of the Punjab Act. In view thereof, it may not be
appropriate to go into the nuanced distinction between
“deferment” and “extension” as per the definitions
contained in Black's Law Dictionary in the given situation,
which is dealt with in the instant appeals.
22. Even otherwise, it is important to understand the ratio
laid down in the judgment of the Karnataka High Court in
BHEL [BHEL v. CCT, (2006) 143 STC 10 (Kar)]. The
issue in the said case before the Karnataka High Court
was as to whether the power to pass a deferment order is
to be exercised even after the expiry of the period of
limitation which was answered in the negative. The
reasons given in support of this conclusion are as follows:
(STC pp. 15-16, para 8)
“8. … Deferment of assessment has the
effect of enlarging the period of limitation
which did not expire by the time the
deferment order is contemplated to be
passed. When once the period of limitation
expires, the immunity against being subject
to assessment sets in and the right to make
assessment gets extinguished. Resort to
deferment provisions does not retrieve the
situation. There is no question of deferring
assessment which had already become timebarred. The provision for exclusion of time
in computing the period of limitation of
deferment of assessment is meant to prevent
further running of time against the Revenue
if the limitation had not expired.”
 (emphasis supplied)
It was also observed that upon the lapse of the period of
limitation prescribed, the right of the Department to assess
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an assessee gets extinguished and this extension confers a
very valuable right on the assessee.
23. If one is to go by the aforesaid dicta, with which we
entirely agree, the same shall apply in the instant cases as
well. In the context of the Punjab Act, it can be said that
extension of time for assessment has the effect of enlarging
the period of limitation and, therefore, once the period of
limitation expires, the immunity against being subject to
assessment sets in and the right to make assessment gets
extinguished. Therefore, there would be no question of
extending the time for assessment when the assessment has
already become time-barred. A valuable right has also
accrued in favour of the assessee when the period of
limitation expires. If the Commissioner is permitted to
grant the extension even after the expiry of original period
of limitation prescribed under the Act, it will give him right
to exercise such a power at any time even much after the
last date of assessment. In the instant appeals itself, when
the last dates of assessment were 30-4-2004, 30-4-2005,
30-4-2006 and 30-4-2007, orders extending the time
under Section 11(10) of the Act were passed on 17-8-2007,
17-8-2007, 17-8-2007 and 25-5-2007 respectively. Thus,
for Assessment Year 2000-2001, order of extension is
passed more than three years after the last date and for
Assessment Year 2001-2002, it is more than two years
after the last date. Such a situation cannot be
countenanced as rightly held by the High Court. When the
last date of assessment in respect of these assessment
years expired, it vested a valuable right in the assessee
which cannot be lightly taken away. As a consequence,
sub-section (11) of Section 10 has to be interpreted in the
manner which is equitable to both the parties. Therefore,
the only way to interpret the same is that by holding that
power to extend the time is to be exercised before the
normal period of assessment expires. On the aforesaid
interpretation, other arguments of Mr. Ganguli lose all
significance.”
Page 15 of 20
14. It is necessary to restate the principle laid down by the three-Judge Bench in
Shreyans Industries (supra): Even where a statute uses varied expression such as
‘deferment’ or ‘extension’, the purpose is only to grant further time to the Assessing
Authority to complete the assessment. Therefore, there is no purpose in drawing a
distinction in the power of extension by referring to the specific expressions used
in different statutes provisioning extending the time. The ratio of the judgment is
that, upon the lapse of period provided for the AO to make the assessment, the right
of the department to assess gets extinguished. This extinguishment also gives rise
to a valuable right to the assessee. Once the right to make assessment extinguishes
there is no question of extension of time when the assessment has become time
barred. This is the broad principle laid down in Shreyans Industries (supra) decided
by the three Judges Bench.
15. Shri Rakesh Dwivedi, learned Senior Counsel advanced submissions on
behalf of the Petitioner-State and has also filed written submissions. It is his case
that the decision in Shreyans Industries (supra) cannot be made applicable to these
batch of cases for the following reasons:
(i) While all these cases arise under Section 42(6) of the Orissa Value Added
Tax Act, 2004, the decision in Shreyans Industries (supra) concerns the
interpretation of Section 11 of the Punjab General Sales Tax Act, 1948.
(ii) Under the Punjab General Sales Tax Act, 1948 a very long period of 3
years from the date of filing of last return had been given for completing
Page 16 of 20
original assessment and a period of 5 years was given for making best
judgment assessment, where return was not filed. This is not the case here.
(iii) The power to grant extension under Section 11(10) of the Punjab General
Sales Tax Act, 1948 did not contain any outer limit for extension. This is also
not the case here.
(iv) The power of extension under Section 11(10) of the Punjab General Sales
Tax Act, 1948 required recording of reasons in writing. There is no obligation
to record reasons here.
(v) The judgment in the case of Shreyans Industries (supra) was in the context
of original assessment, and not to cases pertaining to escapement of tax found
in audit or fraud, which is the case here.
(vi) The judgment of the Supreme Court in CIT v. Ajanta Electricals5 was
distinguished in Shreyans Industries’s case as it was based on the
interpretation of the words ‘it has not been possible’ occurring in Section
139(2) of the Income Tax Act. In these cases, the expression under proviso
to Section 142(6) is the assessment is not completed within the time specified,
Ajanta Electricals (supra) must apply here.
(vii) In Shreyans Industries the assessing officer has sent notices to the
assessee after the expiry of 3 years. The issue pertained to extension of time
for issuing notice, and not for completing assessment as in these cases.
Further, the order of extension was under challenge in Shreyans Industries’s
case.
5 1995 (4) SCC 182.
Page 17 of 20
16. Since the decision in Shreyans Industries (supra) is based not merely on the
interpretation of the Section but on a principle of law, it is difficult to distinguish
the judgment on the facts or wordings of the statute. We cannot easily brush aside
the submissions made by the Respondents that the principle laid down in Shreyans
is equally applicable to the provisions of the Act. Following Shreyans, it could be
argued that after expiry of six months under Section 42(6) of the Act, the right to
make an assessment gets extinguished and therefore the Commissioner cannot
exercise the right of extension of time. The distinction made by Shri Rakesh
Dwivedi is therefore, not so glaring and so fundamental that we can straightaway
disapply Shreyans Industries to the facts of the present case. The principle laid
down in Shreyans Industries is wide enough and requires a critical and detailed
consideration. As we are sitting in the strength of two judges, we consider it
appropriate that the matter be taken up by a Bench of an equal strength and therefore
refer the matter to a three Judge Bench where there will be a possibility to hear the
parties on the applicability of Shreyans Industries. There is yet another reason.
17.1 There are certain alternative perspectives based on the interpretation, as well
as on the principle of administrative law.
17.2 On interpretation, the following perspectives may be noted:
(i) While sub-section (6) of Section 42 relates to the power of the Assessing
Authority, Proviso to sub-section (6) relates to the power of the
Page 18 of 20
Commissioner. These are two distinct officers, exercising different powers.
As we are to examine the power of the Commissioner, the scope and ambit of
such power must be located within the proviso, which alone speaks of the
power of the Commissioner.
(ii) In the said Proviso, there is no limitation upon the commissioner to
exercise such power before the original period of six months. By inferring
such a limitation, Court could be supplying words to the Act by providing “the
commissioner may before the expiry of the initial period of six months” allow
such further time not exceeding six months for completion of the assessment
proceedings.
(iii) Even on a combined reading of the provision in Section 42(6) along with
the proviso, it may be difficult to infer a conclusion that the intendment of the
Section is to render the assessment proceedings to be terminated before the
expiry of the period of one year.
(iv) There is no provision which extinguishes the power of the Commissioner
if it is not exercised during the subsistence of the initial period of six months.
Such an extinguishment is neither in sub-section (6) nor in the Proviso.
(v) A plain and a simple reading of the sub-section, coupled with the proviso
is intended to oblige the ‘Assessing Authority’ to complete the assessment
within six months and if it is not possible, the Commissioner would grant an
extension of another six months. To complete the assessment proceedings
within a period of one year seems to be the mandatory intendment of law. It
is necessary to read the statutes as a whole keeping in mind the text and the
context of the provisions.
Page 19 of 20
17.3 Further, there are similar provisions under the Income Tax Act,1961 i.e.,
Section 139(2) where this Court in Ajanta Electricals (supra) has taken a view that
the power of extension can be granted by an Income Tax officer even after the
expiry of the prescribed period.
17.4 Considering this from the perspective of administrative law, the time
limitations are restrains placed by the legislature to regulate exercise of
administrative power. They are intended to enforce discipline in governance and
could therefore be compelling guidelines or even mandatory prescriptions. The
Court must therefore, examine the provisions in the context of balance between
need for executive flexibility and the quest against arbitrariness. It is the duty of the
Court to synthesize these competing claims keeping in mind the public interest of
good governance. This Court has traditionally drawn a distinction between statutes
prescribing no time limit while performing public duties and statutes providing a
time limit. Even with the statutes providing for the time limit, there is a distinction
between statutes providing for consequence for not acting with the time limit and
statutes not providing for any such consequences. Examination of these factors
become necessary for appreciating the procedural ultra vires in the executive action.
For the present, we need not say anything more.
Page 20 of 20
17.5 The points of distinction brought about by Shri Rakesh Dwivedi and the
perspectives that we have indicated on interpretation and also on principles of
administrative law may be considered by a bench of three-Judges. The necessity for
referring the matter to three-Judges is to have consistency and clarity in the law of
precedents and certainly to avoid having multiple judgements drawing subtle
distinction between one another.
18. For the reasons stated above, we are of the view that these matters must be
placed before a three Judge bench for a consideration of the principle in Shreyans
Industries (supra) and also on the applicability of the said judgment to the
proceedings arising under the Act.
……………………………….J.
 [UDAY UMESH LALIT]
……………………………….J.
[PAMIDIGHANTAM SRI NARASIMHA]
NEW DELHI;
JULY 11, 2022 

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