Dilip Kumar Nayak vs. Joint Commissioner,GST And Central Excise,Bbsr
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Cause title — parties, addresses and appearances
ORDER 16.04.2024
Order No.
These matters are taken up by hybrid mode.
Heard Mr. J. Sahoo, learned Senior Advocate appearing along with Ms. Kajal Sahoo, learned counsel for the petitioner and Mr. P.K. Panda, learned Senior Standing Counsel, GST & Central Excise, Bhubaneswar.
The petitioner has filed this writ petition seeking to quash the order dated 17.11.2017 under Annexure-7 and the notice dated 15.04.2016 under Annexure-3 issued by the opposite parties 1 and 3. 4. Mr. J. Sahoo, learned Senior Advocate appearing for the petitioner contended that the vide order dated 17.11.2017 under Annexure-7 the assessment was made for the period from October 2010 to September 2015. For the period from October 2010 to March 2012, the petitioner has already preferred an appeal, but for the period from April 2012 to September 2015 this Court has to adjudicate the matter to the extent that the petitioner having been discharged for the said period, therefore, for the said period, the assessment should not have been made and demand should not have been raised.
Mr. P.K. Panda, learned Senior Standing Counsel, GST & Central Excise, Bhubaneswar contended that if for the period from April 2012 to September 2015, discharge certificate has been granted to the petitioner, the question can also be considered by the appellate authority if the petitioner prefers appeal against the assessment order for that period. But instead of approaching the appellate authority, the petitioner having approached this Court, the writ petition should not have been entertained.
Having heard learned counsel for the parties and after going through the record, it appears that against the assessment made under Annexure-7 for the period from October 2010 to September 2015, the petitioner has approached this Court in the present writ petition. While entertaining the writ petition, this Court vide order dated 19.07.2018 passed the following order.
“Mr. J. Sahoo, learned Senior Advocate for the petitioner and Mr. T.K. Satapathy, learned Standing Counsel for the Revenue.
Case of the petitioner in this writ application is that while the petitioner was discharged in a proceeding under Section 73 of the Finance Act, 1994 by order dated 12.9.2017 under Annexure-2, passed by the Deputy Director, DGGSTI, Bhubaneswar covering the periods of 2012-13 to 2015-16, however, the demand has been raised under Annexure-7 for the period October, 2010 to September, 2015 which partly is covered by the period indicated under Annexure-2. It is asserted on behalf of the petitioner that for the aforesaid period a proceeding under Section 73 had been concluded by issuance of necessary order of discharge under Annexure-2. Consequently, he asserts that the period covered by Annexurc-2 could not have been dealt with by the Commissioner in any manner whatsoever by raising a demand at all for the said period.
Mr. T.K. Satapathy, learned Standing Counsel for the Revenue on the other hand submits that the impugned order covers a period beyond the period covered under Anneure-2, i.e., the period from October, 2010 March, 2012. Considering the submissions made, we admit the present writ application| but limit consideration in the present writ application to the demand relatable to the period 2012-2015 and the petitioner is granted liberty to seek alternative statutory remedy as may available under law against the period from October, 2010 - March, 2012. If statutory remedy is sought for within a period of two weeks from today along with an application for condonation of delay, the same shall be considered favourably in view of the fact that the petitioner has sought to challenge a conjoint order covering several years before this Court in the present writ application. There shall be stay of the demand relating to period April, 2012 - September, 2015. The writ application is disposed of.
Issue urgent certified copy.
A Free copy of this order be handed over the learned Standing Counsel.”
Thereby, this Court was of the conscious for the period from October 2010 to March 2012, for which the petitioner was granted liberty to prefer appeal. But fact remains for the rest period, i.e. for the period from April, 2012 to September 2015, it was kept for consideration before this Court as the petitioner claimed that for the said period, the petitioner has been discharged in a proceeding under Section 73 of the Finance Act, 1994. According to the petitioner once the discharge certificate has been granted for the said period, no assessment can be made by the assessing authority for the said period.
In view of such position, this Court is of the considered view that this question can also be taken care of by the appellate authority in the event the petitioner raises the same before the appellate authority showing that for the said period discharge certificate has been granted to the petitioner. Thus this court permits the petitioner to pursue his remedy before the appellate authority, where he can raise grounds as has been raised in this writ petition with regard to grant of discharge certificate for the period of April 2012 to September 2015, so that the same can be taken into consideration by the appellate authority and necessary orders can be passed in accordance with law.
With the above observation and direction, the writ petition stands disposed of.
Arun
(DR. B.R. SARANGI) JUDGE
(G. SATAPATHY)
JUDGE
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.