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2022 Supreme(Ori) 622
IN THE HIGH COURT OF ORISSA AT CUTTACK
S. Muralidhar, M.S. Raman, JJ.
M/s. Shiv Shakti Trading Co – Appellant
Versus
State of Odisha – Respondent
STREV No. 19 of 2015
Decided On : 06-12-2022
B. Panda, Advocate, S. K. Pradhan, Advocate
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.
Headnote:
OVAT Act - Validity of Re-assessment under Section 43 - The court held that re-assessment under Section 43 of the OVAT Act was not legally sustainable in absence of valid assessment made under Section 39(2) of the OVAT Act without mentioning date, month, and year in the order passed.
Fact of the Case:
The court considered the validity of re-assessment under Section 43 of the OVAT Act in the absence of a valid assessment made under Section 39(2) of the OVAT Act without mentioning the date, month, and year in the order passed.
Finding of the Court:
The court found that the re-assessment under Section 43 of the OVAT Act was not legally sustainable without a valid assessment under Section 39(2) of the OVAT Act, based on previous decisions and orders by the Supreme Court and the High Court.
Issues: The key issue was whether the Tribunal was justified in holding re-assessment under Section 43 of the OVAT Act to be legally sustainable in the absence of a valid assessment made under Section 39(2) of the OVAT Act without mentioning the date, month, and year in the order passed.
Ratio Decidendi: The court's decision was influenced by the previous decision of the Supreme Court and subsequent orders by the High Court, which established that re-assessment under Section 43 of the OVAT Act was not legally sustainable without a valid assessment under Section 39(2) of the OVAT Act.
Final Decision: The revision petition was allowed in favor of the Petitioner-Dealer and against the Department, and the court directed the return of the Lower Court Record (LCR) and the issuance of an urgent certified copy of the order.
JUDGMENT
1. While admitting the present revision petition on 10th November 2015, the following question of law was framed for consideration:
'Whether in the facts and circumstances of the case, the Tribunal was justified to hold re-assessment under Section 43 of the OVAT Act to be legally sustainable in absence of valid assessment made under Section 39(2) of the OVAT Act without mentioning date, month and year in the so called order passed?'
2. In view of the decision of this Court dated 1st December 2021 in STREV No.64 of 2016 read with a subsequent order dated 8th April, 2022 in STREV No.64 of 2016 (M/s. Keshab Automobiles v. State of Odisha), which has been affirmed by the Supreme Court of India in Deputy Commissioner of Sales Tax v. M/s. Rathi Steel and Power Limited by order dated 13th July, 2022 in Special Leave to Appeal (C) No.9912 of 2022, the question is answered in the negative i.e., in favour of the Petitioner-Dealer and against the Department.
3. The revision petition is allowed in the above terms. LCR be returned forthwith.
4. Issue urgent certified copy of this order as per rules.
