M/S Hcl Infosystems LTD vs. The Commissioner Of Sales Tax (Odisha)

2026 :: Date of Order : 30.09.2026 ORDER Questioning the propriety and sanctity of the Order dated 31st December, 2024 passed in Revision Case No.BHU-62/V/2020-21 by the Commissioner of Sales Tax-opposite party No.1 (hereinafter be referred to as “Revisional Authority”) sustaining Order dated 06.08.2018 of the Additional Commissioner of Sales Tax (Appeal), Bhubaneswar (“the Appellate Authority” for brevity) in Appeal Case No.AA (VAT)-25/BH-II/2018-19, whereby the appeal preferred by the petitioner got summarily rejected in exercise of power conferred under Rule 88 of the Odisha Value Added Tax Rules, 2005 (“OVAT Rules”, for short), the afore-noted writ petition invoking provisions under Articles 226 and 227 of the Constitution of India for grant of following relief(s) has been filed: “Under the above circumstances, it is most respectfully prayed that this Hon’ble Court may be graciously pleased to admit this petition, call for and peruse the relevant records and after hearing the petitioner’s counsel, be further pleased to: (i) Issue a Writ in the nature of Certiorari quashing the impugned order dated 06.08.2018 passed by the opposite party No.3 under Annexure-4; (ii) Issue a Writ in the nature of Certiorari quashing the impugned order dated 31.12.2024 passed by the Commissioner of Sales Tax, the opposite party No.1 under Annexure-5; (iii) Issue a writ in the nature of Mandamus or issue any other writ(s) or order(s) by setting aside the impugned order of the opposite party No.2 under Annexure-1; (iv) Issue a writ in the nature of Mandamus or issue any such other writ directing the opposite parties not to recover the demand as computed in the order of assessment under Annexure-6; (v) Issue any appropriate writ(s)/direction(s)/deemed fit in the fact and circumstances of the case.”

Shorn off unnecessary details of fact, it is apposite to record that upon service of notice bearing No.3514/CT, dated 26th April, 2018 in connection with recovery of tax and penalty pertaining to tax periods from 1st April, 2014 to 30th September, 2015, on enquiry from the office, the petitioner could gather information regarding the order of assessment, which had been passed on 14th December, 2017 by the Deputy Commissioner of Sales Tax, Bhubaneswar-II Circle.

Since the petitioner did not receive such assessment order, applied for grant of certified copy of the said order and filed an appeal, i.e., Appeal Case No.AA(VAT)- 25/BH-II/2018-19 under Section 77 of the Odisha Value Added Tax Act, 2004 (for short, “the OVAT Act”) within the statutory period from the date of delivery of the certified copy of the assessment order.

The Additional Commissioner of CT & GST (Appeal), Bhubaneswar-appellate authority issued notice bearing No.458/CT and GST, dated 27th June, 2018 calling upon the petitioner to show cause as to why the appeal shall not be rejected on the ground of delay as the appeal was filed after lapse of 140 days of the date of passing the order of assessment.

The Appellate Authority referring to Postal Tracking Report indicating “Item Delivered” (Annexure-7), invoked provisions contained in Rule 88 of the OVAT Rules and summarily rejected the said appeal on 6th August, 2018 with an observation that “it is found that the said assessment order has been ‘served on the dealer- appellant’ on 27th December, 2017”.

Being dissatisfied with the appellate order, the petitioner filed revision petition, being Revision Case No.BHU/62/V/2020-21 under Section 79(2) of the OVAT Act, which came to be disposed of on 31st December, 2024 by the Commissioner of Sales Tax, Odisha, which is subject matter of challenge in the present writ petition.

Sri Manoj Mishra, learned Senior Advocate appearing for the petitioner, referring to the tracking report from the India Post, submitted that the service of assessment order on the “dealer” is incomprehensive. The fact of service of such assessment order on “the dealer” is not discernible from such tracking report. The factual observation made by the Commissioner of Sales Tax at paragraph-3 of the order that “the dealer petitioner has received the order of assessment on dated 17th December, 2017 as per the postal tracking” is without any evidence on record.

It is vociferously submitted by the learned Senior Advocate that the Revisional Authority has merely quoted the submissions of the petitioner at paragraph-4, nonetheless no reason has been assigned to discard the plea taken by the petitioner. Whereas the record is silent about service of assessment order on the petitioner- company/authorized person, the conclusion arrived at the appellate authority as well as the revisional authority can be said to be based on no evidence. Therefore, he prayed for showing indulgence in the matter.

Quoad ultra, Sri Sunil Mishra, learned Standing Counsel appearing for the CT & GST Organisation produced before this Court the assessment record along with record relating to Audit Visit Report and submitted that the assessment order was despatched to the petitioner- company on 17th December, 2017 by Registered Post with AD (“RLAD” as reflected from the postal receipt kept at page 48 of the record) and tracking report downloaded from the web portal of the India Post indicates “item delivered” on 27th December, 2017. Therefore, the observation of the appellate authority as confirmed by the revisional authority cannot be said to be perverse and bereft of evidence on record. No perversity or infirmity can be attached to such finding of fact. Therefore, he requested for dismissal of the writ petition in limine.

Sri Sunil Mishra, learned Standing Counsel accepts and waives issue of formal notice on behalf of opposite parties and notice is made returnable forthwith.

Since counsel for both the parties have advanced respective arguments and the assessment record is produced before this Court, this writ petition is disposed of at the stage of fresh admission on the consent of the counsel for the parties.

Heard Sri Manoj Mishra, learned Senior Advocate appearing for the petitioner and Sri Sunil Mishra, learned Standing Counsel appearing for the CT & GST Organisation.

This Court has the occasion to peruse the assessment record as produced for perusal by the learned Standing Counsel. The issue raised by the parties revolves around limited compass that whether the assessment order was served/received on the assessee/dealer as claimed by the revenue.

In order to appreciate rival contentions, it is felt expedient to peruse the record. The papers available on record evince that the Appellate Authority issued notice No.458/CT & GST-18 on 27th June, 2018 (Annexure-2) wherein it is indicated that: “*** As per Sub-section(3) of section-77 of the OVAT Act you should have filed the appeal if any, within 30 days from the date on which order is served on you. Accordingly, the appeal could have been filed on or before 26.01.2018. But you have filed the appeal on 05.06.2018 without attaching any condonation of delay and any convincing proof of the same. ***”

The petitioner in response to such notice, has filed a petition explaining the delay (Annexure-3) with the following contents: “We would like the intimate you that after receiving the notice for show cause vide letter No.3514, dated 26.04.2018 through hand delivery, we came to know that the assessment order has issued but not received by us, hence we have applied for the certified copy of the VAT assessment order, which we got the same from concerned circle on 08.05.2018 by hand delivery. And also we have filed the appeal on 03.06.2018 along with deposit of 10% on demand amount. The application for appeal has submitted within 30 days from the date of received of certified copy. Therefore, I request you to kindly condone the delay and accept the appeal and obliged.”

As it revealed from the said reply/explanation that it was consistent stand of the petitioner that assessment order was “not received” by it. Scrutiny of documents placed in assessment record, manifest that the authorized signatory, namely, “Bijay”, received all the intimations/notices and he has been participating in the assessment proceeding by furnishing adjournment petitions and he furnished all required documents and statements. Page 48 of the assessment record depicts that the order of assessment dated 14th December, 2017 was tendered with the RMS for dispatch. The face of Assessment Order (page 47 of assessment record) indicates the communication was made by “RP with AD”. The postal receipt at page 48 of said record shows the mark “RLAD”. Nevertheless, the record does not contain any A.D. This clinches that acknowledgement of service never returned to the sender-office. Rather the record contains at page-49, tracking report downloaded from the India Post web portal, which merely shows “Item Delivered”. There is no iota of evidence available on assessment record with respect to the person/dealer who received the assessment order. Had the A.D. been kept on record, the recipient’s name would have been prominently identified. This Court finds certain documents like Notice in Form VAT-306 dated 30.06.2017 for assessment and subsequent intimations to the assessee-company which bear seal of the company on the A.D. receipt with signature of the authorised signatory. 7. 3. This Court having made deep scrutiny of record, found a receipt signed by “Bijay”, authorized signatory for HCL Infosystems Limited, which indicates said Bijay being authorized signatory have received all the intimations and has been putting his signature on the adjournment petitions. It is, thus, emanating that the Appellate Authority as also the Revisional Authority verified the record casually and ignored to take note of such crucial and pertinent evidence on record. In absence of any definite material to show the assessment was served on the authorized person/dealer, this Court is unable to perceive that the factual determination as made by the Appellate Authority and affirmed by the Revisional Authority can be countenanced in law.

Sri Sunil Mishra, learned Standing Counsel made valiant attempt to justify rejection of petition for condonation of delay and to buttress his submission he relied heavily on the tracking report and the receipt issued by the Postal Department indicating the assessment order being sent by registered post. He would submit that since the assessment was “communicated” by registered post presumption must be drawn in favour of service of the same.

It would not suffice to draw positive inference that the assessment order was issued to the assessee without demonstrating whether factually it was “served” on the petitioner. In order to comprehend that the petitioner has been served with the assessment order, it is necessary to have regard to the distinction between the expression “issue of notice” vis-a-vis “service of notice”. The expressions “service or communication of the order/decision has to be construed to mean that such order is served or put to the knowledge of the concerned assessee.

On a different angle the matter can be perceived. The term “Assessee” has been defined in clause (3) of Section 2 of the OVAT Act to mean “any dealer by whom tax or any other sum of money is payable under this Act, and includes every dealer in respect of whom any proceedings under this Act has been initiated for the assessment of tax payable by him”. Clause (12) of Section 2 defines the terms “Dealer” to mean: “any person who carries on the business of buying, selling, supplying or distributing goods, executing works contract, delivering any goods on hire-purchase or any system of payment by instalments, transferring the right to use any goods or supplying by way of or as part of any service, any goods directly or otherwise, whether for cash or for deferred payment, or for commission, remuneration or other valuable consideration and includes –– (a) a casual dealer; (b) a commission agent, a broker or a del credere agent or an auctioneer or any other mercantile agent, by whatever name called; (c) a non-resident dealer or an agent of a non-resident dealer, or a local branch of a firm or company or association or body of persons whether incorporated or not, situated outside the State; (d) a person who, whether in the course of business or not.––

Rule 121 of the OVAT Rules prescribed as follows: “Order of assessment, appeal or revision to be communicated to the dealer.–– A copy of the order of assessment, appeal or revision shall be supplied to the concerned dealer free of cost and without application for the same.” 8. 2. Rule 131 of the said OVAT Rules dealing with “Service of notice” provides that: “(1) Any notice which is issued under the provisions of the Act or these rules may be served on a dealer or person by any of the following modes, namely:–– (a) by giving or tendering it directly or by a messenger including a courier to such dealer or his manager or agent, or the tax practitioner representing the dealer in the proceeding to which the order or notice relates; or (b) by giving or tendering it to some adult member of his family, if such dealer or manager or agent is not present at his place of residence or business; or (c) by sending it to him by registered post; (d) by sending it by fax message or by electronic mail service if any such address is furnished to the Department. Provided that if the authority issuing the notice is satisfied that an attempt has been made to serve a notice by any of the above mentioned modes and the dealer is avoiding its service or that for any other reason, the notice cannot be served upon him by any of the above mentioned modes, the said authority may, after recording the reasons for so doing, cause such notice to be served by affixing a copy thereof in some conspicuous place in his office or also upon some conspicuous part of the last notified place of his business and a notice so served shall be deemed to have been duly served. (2) When a notice is sent by registered post, it shall be deemed to have been received by the addressee at the expiry for the period normally taken by a registered letter in transit unless the contrary is proved. (3) Where the authority issuing notice is satisfied that there is reason to believe that the dealer or the person to whom the notice is issued is keeping out of the way for the purpose of avoiding service or that for any other reason the notice cannot be served in ordinary means, in such cases orders can be passed for service by advertisement in a daily newspaper circulating in the locality in which the dealer or the person to whom the notice is issued is last known to have resided, carried on business or personally worked for gain.”

Conjoint reading of the aforesaid provisions clearly leads to conceive that the document sent by registered post is required to be “served on a dealer” and the said document, like assessment order is to be “supplied to the concerned dealer”. The assessment record reveals that one Sri Bijay was the authorized signatory engaged on behalf of HCL Infosystems Limited (petitioner), who not only received the notice/intimations, but also participated in the assessment proceeding. The record does not reveal that the assessment order has been served on said authorized signatory nor on the assessee- dealer/company. A.D. as stated to have been accompanied with the Registered Letter while communicating the assessment order to the company/assessee being not available on record, it can safely be said that the presumption by deeming fiction as enshrined in Section 27 of the General Clauses Act, 1897, read with Section 29 of the Odisha General Clauses Act, 1937, has been successfully rebutted by the petitioner. Since no conclusive proof is available on record to indicate that assessment order was served on the dealer/company, the order of the Revisional Authority cannot be sustained.

Ergo, this Court is inclined to exercise extraordinary juri iction invoking provisions of Article 226 of the Constitution of India to set aside the Order dated 31st December, 2024 vide Annexure-5 passed by the Commissioner of Sales Tax-opposite party No.1 in Revision Case No.BHU-62/V/2020-21. Having thus, interfered with the Order of the Revisional Authority, the matter is remitted to the Additional Commissioner of Sales Tax (Appeal), Bhubaneswar for deciding the matter afresh by taking into consideration the background material discussed hitherto and having regard to material available on record. It is hoped that the Appellate Authority shall proceed with the matter in accordance with law keeping in view the statutory provisions as referred to supra and evidence on record. 9. 1. It is also directed that the assessment record and record relating to Audit Visit Report be returned to the learned Standing Counsel appearing for the CT&GST Organisation forthwith on proper acknowledgement.

With the above observations, the writ petition is allowed to the above extent and the Appellate Authority shall be at liberty to consider the material without being influenced by earlier orders passed by the authorities. However, in the circumstances, there shall be no order as to costs. Pending Interlocutory Application(s), if any, shall also be disposed of. (Dr. SANJEEB K PANIGRAHI) (MURAHARI SRI RAMAN)