Point of Law: Limitation would arise under Section 29(6) of the Act, only in the event and at the stage of the application filed under Section 32 being allowed.

JUDGMENT :

1. Heard Sri Nishant Mishra, learned counsel for the petitioner and Sri Manu Ghildayal, learned counsel for the Revenue.

2. Originally, the present petition was filed to challenge the notice dated 29.05.2017 issued to the petitioner by its assessing authority, under Section 31 of the U.P.V.A.T. Act, 2008 (hereinafter referred to as the “Act”) for the A.Y. 2008-09, seeking to rectify the order dated 22.02.2014 passed by the then assessing authority of the petitioner, under Section 32 of the Act. During pendency of this petition, proceedings pursuant to that notice concluded. Thus, the order dated 21.06.2017 came into existence. Thereby, the assessing authority of the petitioner concluded, the order dated 22.02.2014 and consequentially, the orders dated 18.07.2014 and 3.10.2015 [for A.Y. 2008-09 (U.P., Central and, Entry Tax)] suffered from a mistake apparent on the face of record. The order dated 21.06.2017 has been challenged through amendment made to this writ petition. It may be noted, by composite order dated 18.07.2014 the third ex-parte assessment order had been framed against the petitioner. That ex-parte order had been recalled by the order dated 03.10.2015. Thus, at present, the second composite ex-parte assessment order dated 18.09.2013, framed in the case of the petitioner for A.Y. 200809 (U.P., Central and, Entry Tax), has been revived.

3. Briefly, the petitioner is a duly incorporated company. It is a registered dealer engaged in executing works contracts, mainly for the Indian Railways. For the A.Y. 2008-09, it was first subjected to ex-parte assessment orders, all dated 30.6.2012, framed under the Act, the Central Sales Tax Act, 1956 (hereinafter referred to as the “Central Act”) and the Uttar Pradesh Tax on Entry of Goods Act, 2007 (hereinafter referred to as the “Entry Tax Act”). The petitioner filed applications under Section 32 of the Act, to set aside the aforesaid first ex-parte assessment orders dated 30.06.2012. Those applications were allowed by orders dated 11.01.2013. The ex-parte assessment orders dated 30.06.2012 were set aside. Thereafter, on 18.09.2013, the second -composite ex-parte assessment order was framed against the petitioner, for the A.Y. 2008-09 (U.P., Central and, Entry Tax Act). Thereby, tax was assessed - under the Act, Rs. 18,20,000/-; under the Central Act, Rs. 1,08,40,000/-and under the Entry Tax Act, Rs. 52,01,708/-. Against that order, the petitioner filed (within time), another application under Section 32 of the Act. It was allowed on 22.02.2014 and the aforesaid second-composite ex parte order dated 18.09.2013 was set aside. Consequently, the third composite ex-parte assessment order came to be framed against the petitioner for the A.Y. 2008-09 (U.P., Central and, Entry Tax), on 18.07.2014. Upon further application filed by the petitioner under Section 32 of the Act, that ex-parte assessment order was also set aside by order dated 03.10.2015. Apparently, no further assessment order/s was/were framed in the case of the petitioner for A.Y. 2008-09 (U.P., Central and, Entry Tax) up to 30.09.2016. Thereafter, those assessment proceedings became time barred.

4. In these facts, on 19.12.2017, the petitioner was served with an ex-parte order dated 16.08.2016 passed under Section 31 of the Act referable to the power of the assessing authority to rectify mistakes apparent on the face of the record -in the order dated 22.02.2014 i.e., the order passed under Section 32 of the Act, to recall the second -composite ex-parte assessment order for A.Y. 2008-09 (U.P., Central and, Entry Tax). Therein, the petitioner’s assessing authority took a view that the order dated 22.02.2014 had been passed outside the prescribed period of limitation to frame a fresh/second assessment order. It was therefore, time barred. Consequently, the assessing authority also passed order under Section 32 of the Act (referable to the power of the assessing authority to recall an ex-parte order), and dismissed t