JUDGMENT :

S. Muralidhar, J.

1. In both these writ petitions, a common question of law arises for consideration under the Orissa Entry Tax Act, 1999 (OET Act). The question is whether a formal communication of the acceptance of the return filed by way of self-assessment under Section 9 (2) of the OET Act is a pre-requisite to the reopening of an assessment under Section 10 (1) of the OET Act?

Background

2. At the outset, it must be noticed that in the context of the Orissa Value Added Tax Act, 2004 (OVAT Act), a similar question was considered by this Court in its decision in M/s. Keshab Automobiles v. State of Odisha (decision dated 1st December 2021 in STREV No.64 of 2016) which holds, in the context of Section 43 read with Section 39 (2) of the OVAT Act, prior to their amendment with effect from 1st October 2015, that unless there is a communication of the acceptance of the return filed in the first instance by way of self assessment, there cannot be a reopening of the assessment. The aforementioned decision of this Court in M/s. Keshab Automobiles (supra) has been affirmed by the Supreme Court of India in its order dated 13th July 2022 in SLP (Civil) No.9912 of 2022 (Deputy Commissioner of Sales Tax v. M/s. Rathi Steel and Power Ltd. etc. and batch) by the following order:

“We have gone through the impugned order (s) passed by the High Court. The High Court has passed the impugned order (s) on the interpretation of relevant provisions, more particularly Section 43 (1) of the Odisha Value Added Tax Act, 2004, which was prevailing prior to the amendment. We are in complete agreement with the view taken by the High Court. No interference of this Court is called for in exercise of powers under Article 136 of the Constitution of India. Hence, the Special Leave Petitions stand dismissed.

Pending application (s) shall stand disposed of.”

3. In fact, W.P.(C) No.7458 of 2015 was at one stage adjourned awaiting the decision of the Supreme Court in the aforementioned SLP.

Referral order

4. As regards the reference to this Full Bench, it was made by the order dated 31st March 2022 of the Division Bench of this Court in W.P.(C) No.7458 of 2015 (M/s. ECMAS Resins Pvt. Ltd. v. State of Orissa) by the following order:

“1. One of the issues involved in the present case is whether the impugned order of reassessment for the period 1st April, 2008 to 31st March, 2014 is valid in view of the non-communication of the acceptance of the original return filed by the assessee by way of self-assessment under Section 9 (2) of the Orissa Entry Tax Act, 1999 (OET Act)?

2. Mr. Sahoo, learned Senior counsel for the Petitioner placed reliance on the decision of this Court in M/s. Keshab Automobiles v. State of Odisha (decision dated 1st December, 2021 in STREV No. 64 of 2016) which holds in the context of Section 43 read with Section 39 of the Odisha Value Added Tax Act, 2004 (OVAT Act) that unless such acceptance of the return filed by way of self-assessment is actually communicated to the assessee, there cannot be a re-opening of the assessment.

3. Mr. Sunil Mishra, learned Senior Standing counsel for the Department on the other hand refers to the decision dated 7th December, 2016 of the Coordinate Division Bench of this Court in W.P. (C) No.22343 of 2015 (M/s. Nilachal Ispat Nigam Ltd. v. State of Odisha) which arose under the OET Act and in para 12 of which it has been concluded that for the purposes of Section 10 of the OET Act there need not be a formal communication by the Department to the Assessee of the acceptance of the original return filed by way of self-assessment under Section 9 (1) of the OET Act.

4. It will be noticed here that the decision in Keshab Automobiles (supra) arose under the OVAT Act. The effect of the amendment to Sections 39 and 43 of the OVAT Act with effect from 1st October, 2015 by way of the OVAT (Amendment) Act, 2015 was being considered there. It will be noted here that the said issue does not arise as far as the OET Act is concern