Chatterjee, S. P. Talukdar ( 1 ) THIS writ application is directed against the order being order No. 5 dated 17th August, 2001 [see Bharat Traders (Agency) v. Deputy Commissioner of Commercial Taxes, page 175 supra], by which the West Bengal Taxation Tribunal (in short, "tribunal") had rejected the petition filed by the petitioner in which the writ petitioner had challenged an order reopening an assessment under Section 11e of the Bengal Finance (Sales Tax) Act, 1941 (in short, "the Act, 1941") and also a final order of assessment which was confirmed in appeal. ( 2 ) WE have heard Mr. Chakraborty, learned advocate appearing for the writ petitioner and Mrs. Roy, learned advocate appearing for the State-authorities and also examined the impugned order as well as the other materials on record. ( 3 ) BEFORE we proceed further we may note certain salient facts leading to file of this petition before us. The writ petitioner without submitting the return for turnover tax under the provision of Act, 1941 furnished return and challan showing deposit of tax according to return for the period of four quarters ending on March 31, 1989, namely, for the assessment years 1988-89, 1989-90, 1990-91, 1991-92. By a notice dated November 29, 1995 the writ petitioner was informed that the assessment for the aforesaid period was completed under Section 11e (1) of the Act. Subsequently, the writ petitioner received a notice dated February 19, 1997 from respondent No. 1 asking him to show cause as to why fresh assessment should not be started by reopening the assessment according to the provision of Section 11e (2) of the Act. By an order dated 26th March, 1997, after hearing the writ petitioner, the respondent No. 1 reopened the deemed assessment and initiated a fresh assessment proceedings for the aforesaid period. Subsequently, the proceeding was started for final assessment. A final order was also passed in that proceedings against which an. appeal was taken before the appellate authority which also confirmed the final order of assessment passed by the respondent No. 1. Challenging the aforesaid order of final assessment and the appellate order and also the order reopening the assessment which was passed in the year, 1997, an application for condonation of delay was filed before the Tribunal. appeal was taken before the appellate authority which also confirmed the final order of assessment passed by the respondent No. 1. Challenging the aforesaid order of final assessment and the appellate order and also the order reopening the assessment which was passed in the year, 1997, an application for condonation of delay was filed before the Tribunal. From the impugned order it is clear that the Tribunal categorically held the order reopening the assessment passed in the year, 1997 was totally illegal, invalid and without jurisdiction in view of the fact that for non-filing of any return for turnover tax, the provision of Section 11e of the Act could still be applied and therefore, the order reopening the assessment on the aforesaid ground was totally bad, illegal and without jurisdiction. It is not disputed before us that in the event the order reopening the assessment is set aside, subsequent proceedings, namely, the proceedings for final assessment and also the appellate order should automatically come to an end. ( 4 ) SUCH being the position let us now consider whether the Tribunal was justified in rejecting the petition of the petitioner by holding that the application filed before the Tribunal for quashing and/or setting aside the order reopening the assessment was bad or not. ( 5 ) FROM the impugned order it is an admitted position that the Tribunal had held that the said application filed before the Tribunal was barred by limitation. It is needless to say that the Tribunal in the impugned order has not gone into the merits of the application for condonation of delay in filing the same. ( 6 ) MR. Chakraborty has drawn our attention to the statements made in the application for condonation of delay where a clear statement has been made by the writ petitioner that on advice of the learned advocate for the writ petitioner the order reopening the assessment was challenged with an application for condonation of delay. ( 6 ) MR. Chakraborty has drawn our attention to the statements made in the application for condonation of delay where a clear statement has been made by the writ petitioner that on advice of the learned advocate for the writ petitioner the order reopening the assessment was challenged with an application for condonation of delay. We have also carefully examined the statements made in the application for condonation of delay and are satisfied that in the facts and circumstances of this case and in view of the proceedings taken by the writ petitioner relating to final assessment and appeal there from, sufficient cause has been shown by the writ petitioner in not preferring the application before the Tribunal against the order reopening the assessment on condonation of delay and accordingly, we allow the application for condonation of delay and delay in filing the petition against the order reopening the assessment is condoned. ( 7 ) NOW, the question is when the Tribunal has already held in the impugned order that the order reopening the assessment was bad and in view of our finding that delay in filing the petition before the Tribunal should be condoned, we have no other alternative but to hold that the order reopening assessment must be set aside. ( 8 ) MS. Seba Roy appearing on behalf of the State authorities has also drawn our attention to the order reopening the assessment. It is true from the said order that the representative of the writ petitioner practically consented to reopening of the assessment, However, we are not inclined to permit the State authorities to agitate this question for the first time as it was not taken by the respondent either before the Tribunal or by filing an affidavit-in-opposition to the application for condonation of delay. Such being the position, we are not inclined to permit Ms. Roy to raise such question. ( 9 ) FOR the reasons aforesaid the impugned order of the Tribunal is set aside and consequent thereupon the order reopening the assessment is also set aside. ( 10 ) IN view of the order setting aside the order reopening the assessment, the consequent order namely, order passed on March 26, 1997 and the order dated March 15, 1999 passed by respondent Nos. ( 10 ) IN view of the order setting aside the order reopening the assessment, the consequent order namely, order passed on March 26, 1997 and the order dated March 15, 1999 passed by respondent Nos. 1 and 2 respectively and also the appellate orders dated July 28, 2000 and August 28, 2000 are also set aside. The writ petition is therefore, allowed. There will be no order as to costs.