M/S. Toyo Engineering INDIA Limited, Thane, Maharastra vs. Commissioner Of Sales Tax, Cuttack

Assailing the order dated 11.12.2024 passed by the Commissioner of Sales Tax, Odisha in Case No.CUII-88/V/2019-20 (Annexure-9), the petitioner has approached this Court craving to invoke the provisions under Articles 226 and 227 of the Constitution of India.

Sri Jagabandhu Sahoo, learned Senior Advocate assisted by Ms. Kajal Sahoo, learned advocate submitted that pursuant to the notice in Form VAT-303A dated 31.03.2016 for payment of tax and penalty as a result of audit, an assessment for the tax period 01.04.2010 to 31.03.2015 was framed on 16.01.2017 under Section 42 of the Odisha Value Added Tax Act, 2004 (for short, “OVAT Act”).

To seek rectification of error in the assessment order dated 16.01.2017, a petition under Section 81 of the OVAT Act was filed before the Deputy Commissioner of Sales Tax, Jagatsinghpur Circle,

Sri Jagabandhu Sahoo, learned Senior Advocate advanced suave argument that the mistake in preferring petition before wrong forum required indulgence of this Court in the interest of justice. He submitted that against the order dated 08.05.2018 passed by the Deputy Commissioner of Sales Tax under Section 81 of the OVAT Act, the petitioner had the remedy of appeal under Section 77 of the OVAT Act as the order of rectification forms part of and relates to assessment order dated 16.01.2017. 6. It is conceded by the learned Senior Advocate that the revision petition under Section 79(2) of the OVAT Act before the Additional Commissioner of Sales Tax as well as the Commissioner of Sales Tax was mistake of advise of counsel. He submitted that for mistake of counsel, the petitioner should not suffer. Therefore, he requested this Court to show indulgence and relegate the petitioner to avail the opportunity to avail the appellate remedy under Section 77 of the OVAT Act.

Sri Sunil Mishra, learned Standing Counsel for the CT and GST Organization vehemently opposed such a prayer. He arduously urged that the mistake of the petitioner should not enure to its benefit. Since the petitioner had chosen remedial measure by way of revision petition(s) under Section 79(2) of the OVAT Act, at this distance of time, it need not be protected by granting opportunity to approach the appellate forum.

Heard learned counsel for the respective parties.

As conceded by Sri Jagabandhu Sahoo, learned Senior Advocate that the revision petitions against the order of rectification has been preferred due to inadvertence and on account of wrong advice. Indubitably, as counsel for both the parties ad idem that, the authorities under the OVAT Act should not have considered the revision petitions on merits and the Additional Commissioner of Sales Tax, Territorial Range, Cuttack-II, Cuttack and the Commissioner of Sales Tax, Odisha, Cuttack have no juri iction to entertain petitions under Section 79(2) of the OVAT Act against an order of rectification passed invoking power under Section 81 of the said Act, inasmuch as the rectification relates to the assessment order.

Faced with such situation, this Court deems it appropriate to hold that order dated 07.03.2019 passed by the Additional Commissioner of Sales Tax, Territorial Range, Cuttack-II, Cuttack and order dated 11.12.2014 passed by the Commissioner of Sales Tax, Odisha, Cuttack are nullity, inoperative and ineffective inasmuch as the said orders are passed without juri iction and authority under the statute. Therefore, this Court quashes the orders dated 07.03.2019 and 11.12.2014. 11. Considering the nature of transactions reflected in the assessment order dated 16.01.2017 passed under Section 42 of the OVAT Act and having regard to high stake demand of tax with imposition of penalty, the petitioner is entitled to avail opportunity to ventilate its grievance before the forum provided under the OVAT Act. Therefore, liberty is reserved to the petitioner to avail appropriate alternative remedy as available under the OVAT Act, if it is so advised.

With the aforesaid observation, the writ petition stands disposed of. As a result of the disposal of the writ petition, all pending interlocutory applications, if any, shall stand disposed of.