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IN THE HIGH COURT OF ORISSA AT CUTTACK
S. Muralidhar, M. S. Raman, JJ.
M/s. Kalinga Sponge Iron Ltd., Sundargarh – Appellant
Versus
Commissioner of Commercial Taxes, Orissa, Cuttack & Anr. – Respondents
Writ Petition (C) No. 4313 of 2014
Decided On : 12-12-2022
Notice - Assessment Order under Orissa Value Added Tax Act, 2004 - The court set aside the assessment order and quashed the consequential demands based on uncontroverted averments and legal position established in a previous case.
Fact of the Case:
The petition challenged an assessment order under the Orissa Value Added Tax Act, 2004 for the period of 1st April, 2007 to 31st March, 2011. An interim order was passed staying the assessment order, and despite the lapse of over eight years, no counter affidavit was filed.
Finding of the Court:
The court found that the impugned assessment order cannot be sustained in law based on uncontroverted averments and the legal position established in a previous case.
Issues: The issues revolved around the validity of the assessment order under the Orissa Value Added Tax Act, 2004 and the lack of filing a counter affidavit despite the lapse of time.
Ratio Decidendi: The uncontroverted averments and the legal position established in a previous case led to the court setting aside the assessment order and quashing the consequential demands.
Final Decision: The writ petition was allowed, and the assessment order was set aside with no order as to costs.
JUDGMENT
1. Notice was issued in the present petition which challenges an assessment order dated 20th June, 2013 passed under Section 43 of the Orissa Value Added Tax Act, 2004 (OVAT Act) for the period of 1st April, 2007 to 31st March, 2011 on 2nd July, 2014. On the same day, an interim order was passed staying the said assessment order.
2. Despite lapse of over eight years now, no counter affidavit has been filed.
3. In particular, there is no denial of the averment of the Petitioner that prior to the proceedings under Section 43 of the OVAT Act for the aforementioned period, even before the completion of the self- assessment as well as the audit assessment. This averment in Para-3.5, 3.7 and 4.2 has remained uncontroverted.
4. In view of the legal position explained by this Court in Keshab Automobiles v. State of Odisha (Order dated 1st December, 2021 in STREV No.64 of 2016) which has been upheld by the Supreme Court of India, the impugned assessment order cannot obviously be sustained in law and is accordingly hereby set aside. The consequential demands raised are also hereby quashed.
5. Accordingly, the writ petition is allowed in the above terms but, in the circumstances with no order as to costs.
The uncontroverted averments and established legal position can lead to setting aside an assessment order and quashing consequential demands.
A reassessment under Section 43 of the OVAT Act requires the STO to form an independent opinion on whether there was escapement of taxable turnover, and cannot simply accept the objection of the audi....
Assessment orders under the OVAT Act must adhere to principles of natural justice, including providing an opportunity for a hearing; reliance on non-existent documents renders the assessment invalid.
Re-assessment under Section 43 of the OVAT Act is not legally sustainable without a valid assessment under Section 39(2) of the OVAT Act.
An assessing authority is bound by the specific findings and directions issued by an appellate authority in a remand order; failure to adhere to these directions renders the resulting assessment orde....
The assessment under Section 42 of the Odisha Value Added Tax Act is invalid if based on an Audit Visit Report submitted after the statutory deadline, thus protecting the integrity of tax procedures.
A writ petition is not maintainable to challenge an assessment order when the assessee has failed to participate in the personal hearing and has bypassed the available statutory appeal process.
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