M/S.Shivakasi Enterprises vs. Commissioner Of Commercial Taxes - Orissa High Court, 17 April 2023

W.P. (C) No.1060 of 2017 AFR IN THE HIGH COURT OF ORISSA AT CUTTACK W.P. (C) No.1060 of 2017

(Arising out of an application under Sections 226 and 227 of the Constitution of India).

M/s.Shivakasi Enterprises …. Petitioner

-versus-

Commissioner of Commercial Taxes, Odisha and others

….

Opposite Parties

Advocates appeared in this case through Hybrid Mode :

For Petitioner : Mr.S.Ray, Senior Advocate,

assisted by Mr.K.K.Sahoo, Advocate

For Opposite Parties : Mr.S.S.Padhy, ASC, CT & GST

CORAM:

JUSTICE S.TALAPATRA

AND

JUSTICE SAVITRI RATHO

…………………………………………………………………… Date of Judgment : 17.04.2023 ………………………………………………………………………..

S. Talapatra, J. This matter is taken up through hybrid mode for final disposal on consent of the parties.

Heard Mr.S.Ray, learned Senior Counsel assisted by Mr.K.K.Sahoo, learned counsel appearing for the petitioner. We have

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W.P. (C) No.1060 of 2017 also heard Mr.S.S.Padhy, learned Additional Standing Counsel, C.T. and G.S.T.

The petitioner is a partnership firm engaged in the business of manufacturing and selling of Ash Bricks. It is registered under the Orissa Value Added Tax Act, 2004 as a dealer vide TIN-21284301455. 4. The petitioner’s grievance, as canvassed in this writ petition, falls within a short compass and that emanates from the notice issued under Form VAT-301 dated 17.06.2016, Annexure-1 to the writ petition by the Revenue. The date of audit for the tax period 01.01.2015 to 31.03.2016 has been scheduled by the said notice. It is apparent from Annexure-1 that the said notice was dispatched on 17.06.2016 providing the audit date on 20.07.2016. Later on, by the further audit notice No.2169/CT dated 21.11.2016, Annexure-9 to the writ petition, the said tax period was altered and modified to 01.01.2015 to 30.09.2015 from 01.01.2015 to 31.03.2016. 5. According to Mr.Ray, learned Senior Counsel appearing for the petitioner, the said change in the tax period has been done to obviate the legal difficulty as created by the notice dated 17.06.2016, Annexure-1 to the writ petition. For issuance of the said audit notice, the petitioner has lost the opportunity of filing his revised return for the last quarter of 2015-2016 in terms of Section - 33 (5) of the Orissa Value Added Tax

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W.P. (C) No.1060 of 2017 Act, 2004 (in short “OVAT Act”). His interest has therefore been prejudicially affected.

Mr. Padhy, learned Additional Standing Counsel, C.T. and G.S.T. appearing for the opposite parties has candidly submitted that the opposite parties have not filed any counter affidavit. He has filed a written note of submission, which is taken on record. Mr. Padhy, learned Additional Standing Counsel has contended that after the tax period was amended by the notice dated 21.11.2016, the petitioner ought to have filed the revised return. According to him, there is no whisper in the entire writ petition that the petitioner was obstructed or prevented from filing of such revised return. Such submission appears attractive on its first blush.

At this juncture, we would like to refer to Section – 33 (4) and Section – 33 (5) of the OVAT Act, 2004. Section - 33 (4) of the OVAT Act,, 2004 is quoted hereunder:

“4. If any dealer, having furnished returns under sub- section (1) or sub-section (2) –

(a) Discovers any omission or error in any return so furnished, or (b) Where there is requirement for adjustment of the sale price or tax or both, as the case may be, in relation to sale of any goods, makes such adjustment by way of issue of credit note or debit note, as the case may be,

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W.P. (C) No.1060 of 2017 he may file a revised return within three months following the tax period to which the original return relates.”

Section 33 (5) of the OVAT Act, 2004 is also extracted hereunder:

(5) If any dealer, after furnishing a return under sub- section (1) or sub-section (2), discovers that a higher amount of tax was due than the amount of tax admitted by him in the original return for any reason, he may voluntarily disclose the same by filing a revised return for the purpose and pay the higher amount of tax as due at any time, in the manner provided under Section 50. Provided that no such voluntary disclosure shall be accepted where the disclosure is made or intended to be made after receipt of the notice for the audit under this Act.

The proviso to Section 33 (5) bars acceptance of any voluntary disclosure if it is made or intended to be made after receipt of notice for tax audit. Filing of a revised return is admittedly voluntary and as per Section 50 (3) and Section 50 (4) of the OVAT Act, a revised return can be filed within a specified period.

As admittedly, the audit notice dated 17.06.2016 was sent before expiry of the period within which the petitioner would have filed a revised return, in our considered view, the audit notice dated 17.06.2016 had set up obstruction in the way of the petitioner in filing the revised

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W.P. (C) No.1060 of 2017 return. It is evident and admitted that he was entitled to file such revised return by 30.06.2016 for the quarter from 01.01.2016 to 31.03.2016 in terms of proviso to sub-Section 5 of Section 33 of the Orissa Value Added Tax Act, 2004. 10. Having observed thus, we direct the Revenue, Government of Odisha, to accept the revised return of the petitioner for the tax period from 01.01.2016 to 31.03.2016, if such return is filed by 31.05.2023. It is further clarified that the interim order passed by us earlier stands vacated. The audit can proceed in terms of the notice dated 21.11.2016, Annexure-9 to the writ petition.

11.

In the above terms, the writ petition stands allowed. There shall be no order as to the costs.

12.

Urgent certified copy of this order be granted on proper application.

(S.Talapatra)

Judge

Savitri Ratho, J. I agree.

(Savitri Ratho)

Judge

Orissa High Court, Cuttack Dated 17th April, 2023/Bichi