M/S. Vinayak Agro Industries vs. State Of Odisha

Facts

The Petitioner, M/s. Vinayak Agro Industries, assailed an order dated 30.07.2021 passed by the Additional Commissioner of Sales Tax (Appeal), Sundargarh Range, Rourkela. This appellate order confirmed an assessment order dated 27.01.2016 passed under Section 43 of the Odisha Value Added Tax Act, 2004 (OVAT Act) for tax periods from 01.04.2008 to 31.03.2014. The Petitioner argued that the assessment was barred by limitation as it was not completed within the period stipulated under Section 43(4) of the OVAT Act. Furthermore, the assessment was based on an investigation by the Central Excise Authority, whose order was later quashed by the CESTAT due to a lack of material evidence for clandestine removal of goods. The Opposite Parties contended that the Petitioner had previously challenged the same assessment order in W.P.(C) No. 5316 of 2016, which was dismissed on 15.05.2019, with liberty granted to file an appeal. They also stated that an independent inquiry by the Vigilance Wing of CT & GST Organization supported the assessment and that an alternative remedy under Section 78 of the OVAT Act was available.

Held

The Court noted that the Petitioner had previously challenged the same assessment order in W.P.(C) No. 5316 of 2016, which was dismissed on 15.05.2019, with liberty granted to file an appeal. The Opposite Parties pointed out that an alternative remedy under Section 78 of the Odisha Value Added Tax Act, 2004 (OVAT Act) was available to the Petitioner to challenge the order passed in the first appeal, and that the issues raised, including the question of limitation, could be adjudicated by the Odisha Sales Tax Tribunal. Given the availability of an alternative statutory remedy and the fact that the question of limitation could be effectively addressed by the Tribunal, the Court expressed its disinclination to entertain the writ petition. The Petitioner then sought permission to withdraw the writ petition to prefer a second appeal before the Tribunal. Accordingly, the writ petition was dismissed as withdrawn with liberty to the Petitioner to file a second appeal. The Court directed that the original order in the first appeal be returned to the Petitioner for this purpose.

Key Issues

1. Whether the assessment order dated 27.01.2016, passed under Section 43 of the Odisha Value Added Tax Act, 2004, is barred by limitation, considering the notice was issued on 25.08.2014 and the assessment was not completed within the period stipulated under Section 43(4) of the said Act (as amended with effect from 01.10.2015)? The Petitioner argued that the assessment is barred by limitation as the Assessing Authority failed to complete the assessment within the prescribed period under Section 43(4) of the OVAT Act. Additionally, the Petitioner contended that the assessment was predicated on an investigation by the Central Excise Authority, whose findings were subsequently set aside by the CESTAT due to insufficient evidence of clandestine removal. Therefore, the Petitioner argued, the assessment under the OVAT Act cannot be sustained. The Opposite Parties argued that the Petitioner had previously approached this Court in W.P.(C) No. 5316 of 2016 challenging the same assessment order, which was dismissed on 15.05.2019, with liberty to file an appeal. They also submitted that an independent inquiry by the Vigilance Wing of CT & GST Organization corroborated the assessment and that an alternative remedy under Section 78 of the OVAT Act is available to the Petitioner. They further contended that the question of limitation can be adjudicated by the Odisha Sales Tax Tribunal.