M/S.Dr.Sarojini Pradhan vs. State Of Odisha

This matter is taken up through hybrid mode.

Heard Mr. Jagabandhu Sahoo, learned Senior Counsel appearing along with Ms. Kajal Sahoo and Mr. A.C. Mishra, learned counsel for the Petitioner, and Mr. Sunil Mishra, learned Additional Standing Counsel appearing for the CT & GST Department.

Against the order of assessment under Annexure-6 dated 16th August, 2017, the Petitioner has approached this Court by filing this writ petition.

Mr. Jagabandhu Sahoo, learned Senior Counsel appearing for the Petitioner contended that against the order of assessment under Annexure-6, the Petitioner had approached the appellate authority and also ultimately the Sales Tax Tribunal, which passed the order dated 02.03.2017 under Annexure-5, wherein it has been specifically considered whether the turnover disclosed in the CST returns can be brought to be added to the turnover disclosed under the OST without authentic documentary evidence. There is no proof from the side of the fora below that the goods sold in course of export, as returned by the dealer-petitioner has actually been sold inside the State of Orissa. There may be other reasons for non production of ‘H’ declaration forms and other supporting evidences on the side of the dealer. Therefore, a presumptive analysis of the DCST in the instant case that goods returned to have been exported out of country were actually sold inside the State of Orissa cannot be sustained in the eyes of law. Therefore, export sale figures to the tune of Rs.2,79,57,377.43 in the return under the CST Act by the dealer petitioner need to be excluded from the OST returns filed while determining the GTO and TTO and tax liability of the dealer under the OST Act. Simultaneously, the claim of export sale to the tune of Rs.2,79,57,377.43 by the dealer appellant is required to be added to the CST returns to be treated as sale in course of inter-State trade and commerce and be taxed at the appropriate rate as prescribed under the Act for sale of commodity not being supported by the statutory declaration forms. Therefore, it is contended that this observation of the Tribunal has not been taken care of by the Assessing Authority while passing the order dated 16.08.2017. 5. Mr. S. Mishra, learned Additional Standing Counsel appearing for CT & GST Department contended that the petitioner has challenged the assessment order dated 16.08.2017, which is appealable, and whatever observation made by the Tribunal if the same has not been taken into consideration by the Assessing Authority, while passing the impugned order, it is open to the petitioner to bring the same to the notice of the 1st appellate authority by preferring First Appeal against the order of assessment dated 16.08.2017. Instead of doing so, the petitioner has invoked the extraordinary juri iction of this Court under Article 226 of the Constitution of India. Therefore, the writ petition should be dismissed.

Considering the contentions raised by learned counsel for the parties and after going through the records, it appears that while entertaining the writ petition, this Court passed interim order on 28.11.2017 directing that the operation of the order dated 25.02.2017 passed by the Odisha Sales Tax Tribunal under Annexure-5 and consequential orders of re-assessment under Annexures-6 & 7 shall remain in abeyance till the next date subject to the petitioner depositing all tax liability under original order passed by the Assessing Officer both under the O.S.T. and C.S.T. Act after adjusting the amount deposited in course of proceeding.

Learned Senior Counsel appearing for the petitioner though contended that the petitioner has complied with the interim order dated 28.11.2017 by depositing the tax liability on it, but fairly admitted that against the order passed by the Assessing Authority, appeal lies. Therefore, he contended that the petitioner may be permitted to raise the same questions, as have been raised in this writ petition, before the appellate authority.

In view of the above, this Court disposes of the writ petition permitting the petitioner to prefer appeal before the appellate authority in accordance with law. However, it is made clear that by the time the petitioner prefers appeal, it will not press for quashing of the order passed by the Tribunal. The original documents, as at Annexures-6 & 7, be handed over to learned counsel appearing for the petitioner by substituting photocopies thereof.