M/S J And T Gems And Jewellery PVT. LTD., Bbsr vs. The Dy. Commnr. Of State Tax, Bbsr
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The petitioner sought to quash an order of confiscation/adjudication levying fine and penalty. The petitioner argued that the officer who conducted search and seizure lacked the authority to pass the final order, acting as a judge in his own cause.
Held
The Court held that the officer who conducted the search and seizure had the authority to pass the order under Section 130 of the OGST/CGST Act. The principle of not being a judge in one's own cause was deemed not applicable in this case.
Key Issues
Whether the officer authorized for search and seizure under Rule 139 can also pass the final adjudication order under Section 130 of the OGST/CGST Act. Whether the impugned order is appealable.
Sections Cited
Section 130, Section 73, Section 74, Rule 139
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Cause title — parties, addresses and appearances
ORDER 17.05.2023
Order No.
This matter is taken up through hybrid mode.
Heard Mr. R.P. Kar, learned counsel for the petitioner, Mr. Sunil Mishra, learned Standing Counsel for Revenue and Mr. T.K. Satpathy, learned Sr. Standing Counsel for Central GST & CT.
This writ petition has been filed seeking to quash the order of confiscation/adjudication dated 15.04.2023 under Annexure-10 levying and demanding fine and penalty by opposite party no.1. 4. Mr. R.P. Kar, learned counsel appearing for the petitioner contended with vehemence that by virtue of the letter dated 22.12.2022, the Joint Commissioner, State Tax, Enforcement Range, Bhubaneswar issued authorization in favour of one Shri M.K. Pradhan, Deputy Commissioner of State Tax, Enforcement Unit, Bhubaneswar under Rule 139 (1) of the OGST/CGST Act in the prescribed form GST INS-1 for inspection, search and seizure and on that basis, he caused inspection, search and seizure and passed the demand order on 15.04.2023 under Section 130 of the OGST/CGST Act vide Annexure-10 by levying penalty and fine on the petitioner in lieu of the confiscation. He further contended that Mr. M.K. Pradhan being the search and seizure officer, he has no authority to pass the final order and as such, he has acted as the judge of his own cause. Therefore, he seeks interference of this Court.
Mr. Suinil Mishra, learned Standing Counsel for the Revenue contended that the contention raised by learned counsel for the petitioner has no justification because the power has been vested with Mr. M.K. Pradhan for making search and seizure and as such he has also got the power to pass the order with regard to imposition of penalty and fine under Section 130 of the OGST/CGST Act. So far as the contention raised that he has no power to pass such order, the same could have been raised, had the same been passed under Section 73 and 74 of the Act itself and as such the document under Annexure-10 does not reflect the same to have been passed under Section 73 and 74 of the Act, rather it has been passed under Section 130 of the OGST/CGST Act. In that view of the matter, the claim made by the petitioner that the seizure officer has no authority to pass the order under Annexure-10 is absolutely misconceived one and the same cannot be sustained in the eye of law. That apart, the impugned order is also appealable one and instead of availing the alternative remedy, the petitioner has approached this Court in the present writ petition, which cannot be sustained.
Having heard learned counsel for the parties and after going through the record, it is admitted fact that the authorization for inspection, search and seizure has been granted by the Joint Commissioner of State Tax, Enforcement Range on 22.12.2022 to Mr. M.K. Pradhan. Since the said power has been vested with him, on that basis he carried search and seizure operation of the petitioner’s premises and thereafter passed the order of demand under Annexure-10 imposing
penalty and fine under Section 130 of the OGST/CGST Act to the tune of Rs.5,48,13,320/-. The dispute raised before this Court that the search and seizure authority having passed the order under Annexure-10 has exceeded its juri iction is rejected. Rather the authority has acted within the competency to pass such order. Therefore, the contention raised that he cannot be a judge of his own cause, that principle is not applicable to the present case. Had the same been passed under Section 73 or Section 74 of the Act, then matter would have been different. But here the order has been passed under Section 130 of the OGST/CGST Act. Though certain other questions were raised by Mr. R.P. Kar, learned counsel for the petitioner, in view of the fact that the order impugned is appealable one, this Court disposes of the writ petition giving liberty to the petitioner to pursue its remedy before the appropriate authority, if it is so advised.
With the above observation and direction, this writ petition stands disposed of.
Arun
(DR. B.R. SARANGI)
JUDGE
(M.S. RAMAN)
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.