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M/S. Steer Overseas PVT. LTD. vs. Addl. Commissionerof State Tax(Appeal), Balasore

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RVWPET/131/2024HC OrissaGSTCNR ODHC01040723202405 August 2024Bench: DR. JUSTICE S.K. PANIGRAHI,MR. JUSTICE GOURISHANKAR SATAPATHY11 pages

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Heard together (2 matters)

W.P.(C) No.6744 of 2024
W.P.(C) No. 42015 of 2023

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Cause title — parties, addresses and appearances
RVWPET No.131 of 2024 Page 1 of 11 IN THE HIGH COURT OF ORISSA AT CUTTACK RVWPET No.131 of 2024 (An application under Order 47 Rule 1 read with Section 151 of Civil Procedure Code, 1908) M/s. Steer Overseas Pvt. Ltd., Kolkata … Petitioner -versus- Additional Commissioner of State Tax (Appeal), Territorial Range, Balasore and others … Opposite Parties For Petitioner : Mr. J. Sahoo, Sr. Advocate along with Ms. K. Sahoo, Advocate For Opposite Parties : Mr. S. Mishra, SC for Revenue CORAM: HON’BLE DR. JUSTICE S.K. PANIGRAHI HON’BLE MR. JUSTICE G. SATAPATHY DATE OF HEARING :24.07.2024 DATE OF JUDGMENT:05.08.2024 BY THE BENCH 1. This is a review petition under Order XLVII Rule 1 read with Section 151 of the Code of Civil Procedure, 1908 (in short the “CPC”) by the petitioner praying to review the order dated 30.04.2024 passed RVWPET No.131 of 2024 Page 2 of 11 by this Court in W.P.(C) No.6744 of 2024. The review- petitioner has further prayed to allow the aforesaid writ by granting consequential relief. 2. By the aforesaid order, the Division Bench of this Court has passed the following order in the writ:- “This matter is taken up by hybrid mode. 2. It is agreed by learned counsel for the parties that the issue involved in this writ petition has already been decided by a Coordinate Bench of this Court vide order dated 16.02.2024 passed in W.P.(C) No. 42015 of 2023 (M/S. Maa Tarini Traders v. State of Odisha and others) and batch of writ petitions. 3. In view of the above, this writ petition stands disposed of in terms of the observation and directions issued in M/S. Maa Tarini Traders (supra).” 3. In the course of hearing of the review petition, Mr. Jagabandhu Sahoo, learned Senior Counsel being assisted by Ms. Kajal Sahoo, learned counsels for the petitioner has submitted by referring to the prayer advanced in the writ petition and Annexure- 9 that the petitioner-company had filed a claim before the proper authority for refund of the accumulated Input Tax Credit (ITC) on account of exports without RVWPET No.131 of 2024 Page 3 of 11 payment of IGST, but the refund having been disallowed by the authority, the petitioner-company approached the appellate authority, the Additional Commissioner of State Tax (Appeal), Balasore in an appeal under Section 107 of the Orissa Goods and Services Tax Act, 2017 read with Rule 108 of OGST Rules, 2017. However, the appellate authority failed to appreciate the matter and erroneously dismissed the appeal by confirming the rejection of refund as passed by the learned Proper Officer i.e. Deputy Commissioner of CT & GST, CT & GST Circle, Mayurbhanj, who while rejecting the claim of the petitioner for refund, had not provided an opportunity of hearing to the petitioner and, thereby, violated the principle of natural justice. It is further submitted by the learned Sr. Counsel that the issue involved in this writ petition was never identical to the issue involved in W.P.(C) No. 42015 of 2023 (M/S. Maa Tarini Traders v. State of Odisha and others) and batch of writ petitions, since the claim of the petitioner is only with regard to violation of principle of natural justice for not providing a reasonable RVWPET No.131 of 2024 Page 4 of 11 opportunity of hearing by the learned Proper Officer, who only had provided a short notice period of sixteen (16) hours for hearing and, thereby, the learned Proper Officer was not having the privilege to go through the documents proposed to be relied upon by the petitioner and erroneously rejected the refund application of the tax payer-petitioner herein. Further, the impugned order having passed without any connection with the order passed in M/S. Maa Tarini Traders (supra) is liable to be rectified by reviewing such order. It is, accordingly, prayed by Mr. Sahoo, learned Senior Counsel to rectify/review the impugned order by recalling it and upon hearing the parties, the writ petition may kindly be allowed. 4. On contrary, Mr. Sunil Mishra, learned Standing Counsel for the Revenue has, however, strongly opposed the prayer of the petitioner for review of the order passed in the writ petition by inter-alia submitting that it was agreed by the review-petitioner that the issue involved in this case is identical to the issue involved in the decided case in W.P.(C) No. 42015 RVWPET No.131 of 2024 Page 5 of 11 of 2023 (M/S. Maa Tarini Traders v. State of Odisha and others) and batch of writ petitions and basing on such submission/concession, this Court has passed the impugned order which cannot be reviewed not only on the ground of concession, but also on merits since in absence of GST, Tribunal, the party(ies) desirous of availing statutory remedies of appeal under Section 112 of CGST/OGST Act, 2017 has/have been granted with liberty to file appeal once the GST, Tribunal is constituted and made functional and they are also granted the benefit of stay of recovery of balance disputed amount subject to deposit of a sum of equal to 20% of the remaining amount of tax in dispute as held by this Court in M/S. Maa Tarini Traders (supra) and, admittedly, the impugned

order passed under Annexure-9 is appealable one before the GST, Tribunal and, therefore, the order passed by this Court cannot be questioned on merits nor is it liable to be reviewed since the ingredients of review of the order have not been made out by the review-petitioner. Accordingly, Mr. Mishra has prayed to dismiss the review petition.

5.

In addressing the core issue of amenability of the impugned order to review on the backdrop of rival submissions, there appears no quarrel over the undisputed position of law that a review petition can be admitted in exercise of power U/S. 114 read with Order XLVII Rule 1 of CPC provided the party applying for review of the order must satisfy the Court any of the three grounds, such as:- (i) discovery of new and important matter of evidence which after exercise of due diligence was not within the knowledge of the party applying for review or could not be produced by him at the time, when the decree was passed or order made,

(ii) for some mistake or error apparent on the face of the record,

(iii) for any other sufficient reasons.

6.

The petitioner in this case has applied for review of the order mainly on the ground of mistake or error apparent on the face of the record for want of consideration of facts and judgments placed on record which is apparent from the contention/averments of the petitioner in the review application that this Court has failed to take into consideration the contention/facts raised by the petitioner as well as the judgments relied on by him which are very much germane in the present context. Admittedly, the impugned order was passed by this Court in presence of the parties including the learned Senior Counsel appearing for the petitioner, but no objection was raised when such order was passed by this Court which is very much apparent from the first sentence of the order starting with “It is agreed by the learned counsel for the parties that the issue involved in this writ petition has already been decided by the co- ordinate Bench of this Court vide order dated 16.02.2024 passed in W.P.(C) No. 42015 of 2023 (M/S. Maa Tarini Traders v. State of Odisha and others)”. The aforesaid order, especially when it was passed in the presence of the parties clearly demonstrates and reflects the consent of the parties, but subsequently the petitioner has come up before this Court for seeking review on the ground that there is mistake or error apparent on the face of the record for want of consideration of the contention raised by the petitioner as well as the judgments relied on by him. The aforesaid admitted facts clearly persuade this Court to consider that there was no error apparent on the face of record.

7.

While examining the ramification of the impugned order, it appears that in M/S. Maa Tarini Traders (supra), a Division Bench of this Court by an order dated 16.02.2024 has passed the following directions:-

“Taking into account the aforesaid Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 dated 03.12.2019 issued by the Government of India and subsequent clarification issued by the Central Board of Indirect Taxes and Customs (GST Policy Wing) vide Circular No.132/2/2020 dated 18th March, 2020, we deem it proper in the interest of justice to dispose of these writ applications in the following terms:-

(i) Subject to verification of the fact of deposit of a sum equal to 20 percent of the remaining amount of tax in dispute, or deposit of the same, if not already deposited, in addition to the amount deposited earlier under SubSection (6) of Section 107 of the CGST/OGST Act, the Petitioners must be extended the statutory benefit of stay under Sub- Section (9) of Section 112 of the CGST/OGST Act, for the Petitioners cannot be deprived of the benefit, due to non- constitution of the Tribunal by the respondents themselves. The recovery of balance amount and any steps that may have been taken in this regard will thus be deemed to be stayed.

(ii) The statutory relief of stay on deposit of the statutory amount, in the opinion of this Court, cannot be open ended. For balancing the equities, therefore, the Court is of the opinion that since order is being passed due to non-constitution of the Tribunal by the respondent-Authorities, the Petitioner would be required to present/file his appeal under Section 112 of the CGST/OGST Act, once the Tribunal is constituted and made functional and the President or the State President may enter office. The appeal would be required to be filed observing the statutory requirements after coming into existence of the Tribunal, for facilitating consideration of the appeal.

(iii) In case the petitioner chooses not to avail the remedy of appeal by filing any appeal under section 112 of the CGST/OGST Act before the Tribunal within the period which may be specified upon constitution of the Tribunal, the respondent-Authorities would be at liberty to proceed further in the matter, in accordance with law.

With the above liberty, observation and directions, the writ applications stand disposed of.”

8.

The review-petitioner has never disputed that the order impugned in the writ petition dated 31.10.2023 passed by Addl. Commissioner of State Tax(Appeal), Balasore under Annexure-9 is an appealable one before GST, Tribunal, but admittedly such GST, Tribunal has not been made functional and, thereby, this Court in M/S. Maa Tarini Traders (supra) has provided protection by way of granting stay of recovery of disputed amount subject to deposit of 20% of the remaining tax amount in dispute, besides, providing protection for filing of appeal, once the GST, Tribunal is constituted and made functional. In the aforesaid situation, the petitioner cannot claim any prejudice in the matter, since the order sought to be reviewed has been passed by this Court on the consent of the parties which is clearly reflected from the sentence “It is agreed by the parties”, in the very first line of the order passed in the writ.

9.

In support of his contention for review of the order, the petitioner has also relied upon the decision of Bombay High Court in Principal Global Services Pvt. Ltd. v. The State of Maharashtra and others in W.P.(C) No.1225 of 2023, disposed of on 29.03.2023 in support of his contention for review of the impugned order, but although the petitioner claims for review of the order on the ground of mistake or error apparent on the face of record, however, the decision relied on by the petitioner reveals about review of order for some typographical error as revealed in paragraph-7 of the relied on decision.

10.

On a careful scrutiny of the entire averments of the review petition together with the admitted facts of the case, this Court does not find any ground as permissible under law to review the impugned order. Consequently, no ground for review of the impugned order having made out by the petitioner, the present review petition lacks merit and is liable to be dismissed.

11.

Resultantly, the review petition being devoid of merit stands dismissed on contest, but in the circumstance, no order as to costs.

(DR. S.K. PANIGRAHI)

JUDGE

(G. SATAPATHY)

JUDGE

Orissa High Court, Cuttack, Dated the 5th day of August, 2024/Subhasmita

Reproduced from the public record of the Orissa High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.