Mandatory audit notice period under entry tax law is jurisdictional; defective notice and consequent assessment were set aside.

Mandatory minimum notice periods for audit assessment must be strictly complied with; a notice under the Orissa Entry Tax Act that does not allow the stipulated thirty days is invalid and the assessment based on it is vitiated for want of jurisdiction. Participation by the dealer or failure to object does not cure breach of this statutory condition, because waiver cannot confer jurisdiction on an authority acting contrary to the Act. The impugned assessment and consequential demand were set aside, and the matter was remitted for fresh assessment after giving the required opportunity.

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Issues: (i) Whether a notice issued for audit assessment without granting the minimum thirty days contemplated by Section 9C(2) of the Orissa Entry Tax Act, 1999 vitiates the assessment proceedings and the consequential demand notice. (ii) Whether participation by the assessee or absence of objection cures the defect or confers jurisdiction on the assessing authority, and whether the assessment order is sustainable.

Issue (i): Whether a notice issued for audit assessment without granting the minimum thirty days contemplated by Section 9C(2) of the Orissa Entry Tax Act, 1999 vitiates the assessment proceedings and the consequential demand notice.

Analysis: Section 9C(2) uses mandatory language and requires that a dealer be allowed time of not less than thirty days for production of relevant books of account and documents. The statutory notice is a condition precedent to valid audit assessment. Where the notice itself fails to comply with the minimum time requirement, the resulting proceeding is founded on an invalid notice and the defect goes to the root of the assessing authority's jurisdiction.

Conclusion: The notice was invalid and the assessment proceedings stood vitiated.

Issue (ii): Whether participation by the assessee or absence of objection cures the defect or confers jurisdiction on the assessing authority, and whether the assessment order is sustainable.

Analysis: A jurisdictional defect caused by breach of a mandatory statutory condition cannot be cured by acquiescence, participation, or waiver. The assessing authority, being a creature of the statute, cannot act contrary to the express command of the Act. Consequently, an assessment made on the basis of an invalid notice is unsustainable in law, and the proper course is to set aside the assessment and require fresh assessment in accordance with the statute after giving the dealer the stipulated opportunity.

Conclusion: Participation did not cure the defect, the assessment order was unsustainable, and the matter was required to be remanded for fresh assessment.

Final Conclusion: The writ petition succeeded in part: the impugned assessment and consequential demand were set aside, and the matter was remitted for de novo assessment after granting the statutory minimum opportunity.

Ratio Decidendi: Where a statute prescribes a minimum period for notice as a mandatory condition for initiating assessment, non-compliance renders the notice and all consequential proceedings void for want of jurisdiction, and such defect is not cured by waiver or participation.

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