JUDGMENT

S.C. PARIJA, J. : The petitioner, who is a registered dealer, has filed this writ petition challenging the jurisdiction of the Asst. Commissioner of Commercial Tax, Intelligence Range, Cuttack-opposite party No.2, in conducting tax audit and issuance of Audit Visit Report, especially when the said authority- oppo¬site party No.2 has not been delegated with the power by the Commissioner of Sales Tax, Orissa, to exercise and discharge the power and duties in relation to Rule 41 of the Orissa Value Added Tax Rules, 2005 (OVAT Rules for short), under notification dated 1.12.2005, as per Annexure-5 to the writ petition. The petitioner also assails the submission of the Audit Visit Report in Form E-27 for the purpose of making audit assessment under the provi¬sions of Orissa Value Added Act, 2004 (OVAT Act for short), when the same was required to be submitted in Form VAT-303.

2. The main contention of the learned counsel for the petitioner was that the Commissioner for Sales Tax, Orissa, having issued notification dated 1.12.2005 (Annexure-5), delegat¬ing to the Assistant Commissioner’s of Sales Tax (excluding Intelligence Ranges) to exercise all the powers and duties of the Commissioner specified in Section 41(1) and (2) of the OVAT Act and powers specified in Rule 41 of the OVAT Rules, the audit conducted by the Assistant Commissioner of Commercial Tax, Intel¬ligence Range, Cuttack, and the Audit Visit Report (Annexure-1) submitted by him pursuant to such audit, is wholly illegal and without jurisdiction. The further plea of the learned counsel for the petitioner was that the Audit Visit Report submitted by the Assistant Commissioner of Commercial Tax, Intelligence Range, Cuttack-opposite party No.2 in Form E-27 for the purpose of making audit assessment under the provisions of OVAT Act and the subsequent order of assessment dated 7.12.2006 (Annexure-6) passed on the basis of such report are also improper and illegal, as the proper form prescribed for the same is Form VAT-303.

3. In the counter affidavit filed on behalf of opposite parties, it has been stated that as per the notification issued by the Commissioner of Sales Tax, Orissa, dated 1.12.2005 (Annex¬ure-5), the Commissioner has delegated the powers to select dealers for the purpose of taking up tax audit during a particu¬lar period to the Assistant Commissioner of Sales Tax appointed under Section 3(2) of the OVAT Act, excluding the Intelligence Ranges. However, this power is only for selection of dealers in respect of whom tax audit is to be conducted. Therefore there is no bar in conducting tax audit by the audit team duly constituted under Rule 43 of the OVAT Rules. In the said counter affidavit, it has been further stated that the inspection of the business transactions effected by the petitioner’s firm was taken up simultaneously under both the OVAT Act and Orissa Entry Tax Act and the Rules framed thereunder and accordingly a common report had been prepared in Form E-27, which is substantially the same as Form VAT-303. In order to avoid duplication and for conven¬ience in recording the observation made during the course of audit, the Audit Visit Report has been submitted in Form E-27, which is in substantial compliance of the statutory provisions as well as the principles of natural justice and no prejudice can be said to have been caused to the petitioner on that score.

4. On a perusal of the notification dated 1.12.2005 (Annexure-5) issued by the Commissioner of Sales Tax, Orissa, it is seen that the powers and duties of the Commissioner under Section 41(1) and (2) of the OVAT Act and all powers specified in Rule 41 of the OVAT Rules has been delegated to the Assistant Commissioner of Sales Tax exercising jurisdiction over a circle (s), a Large Tax Payer Unit (s) or a Range (excluding Intelli¬gence Range), with effect from the date of issue of notification.

5. Section 41(1) and (2) of the OVAT Act reads as under :

“41. Identification of tax payers for