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.

JUDGMENT :

SARANGI, J.

The petitioner-M/s Maharana Supply and Company, which is registered under the Companies Act, has filed this revision to set aside the order dated 27.09.2023 passed by the Odisha Sales Tax Tribunal, Cuttack in S.A. No. 79 (V) of 2021 and further seeks to decide the question of law formulated by it in paragraph-5 of the revision petition.

2. The factual matrix of the case, in brief, is that the petitioner-company is a registered dealer under the OVAT Act bearing TIN No. 21431300241 and is engaged in the business of round logs, size wood, saw dust and firewood etc. on wholesale cum retail basis at Kotasahi, Tangi, Cuttack and most of the purchases are being made by it from Odisha Forest Corporation Ltd. The petitioner also purchases from other registered dealers from Odisha and outside State having valid TIN and against tax invoices. The petitioner has included all the purchases and sales as per the usual trade practice and have been maintaining proper books of account and filed VAT returns in Form 201 under Sub-rules (1) of Rule 34 of the Odisha Value Added Tax Rules without any discrepancy for the period from 01.10.2015 to 30.06.2017. During the period from 01.10.2015 to 30.06.2017, the assessment order was passed ex-parte on 29.06.2020 in Form VAT 312 without extending due and proper opportunity to the petitioner to explain the transaction. Aggrieved by such order of assessment, the petitioner preferred First Appeal bearing No.AA/07/ OVAT/CUIIR/2020-21 under Section 77 of the OVAT Act for the period from 01.10.2015 to 30.06.2017, but the Joint Commissioner of Sales Tax (Appeal), Territorial Range, Cuttack-II, vide order dated 27.09.2021, dismissed the said First Appeal. As the First Appellate Authority, without examining the points of law and other evidences, dismissed the appeal in a mechanical manner, by confirming the order of assessment, the petitioner preferred Second Appeal, as against the order of the First Appellate Authority as well as the order passed by the Assessing Authority, before the Odisha Sales Tax Tribunal, Cuttack. But the Tribunal, without appreciating the facts of the case and points of law raised, dismissed S.A. No. 79 (V) of 2021, vide order dated 27.09.2023, by confirming the orders of the First Appellate Authority as well as the Assessing Authority.

Hence, this revision.

3. Mr. T.K. Satapathy, learned counsel appearing for the petitioner contended that though the Assessing Authority passed the ex-parte order on the basis of audit visit report, but there are other materials available on record, including Annexure-6 dated 19.05.2020, which fortify that audit visit report and assessment for the periods from 01.04.2012 to 31.03.2014 and from 01.10.2015 to 30.06.2017 under OVAT Act are not available. It is contended that the Assessing Officer passed the assessment order without giving opportunity of hearing to the petitioner and, more so, the ex-parte order was passed relying upon the audit visit report, which is a non-existent document. Thereby, the order passed by the Assessing Authority and the confirming orders passed by the First Appellate Authority as well as the Second Appellate Authority, being without any application of mind, are liable to be quashed.

4. Mr. Sunil Mishra, learned Standing Counsel appearing for the Revenue fairly submitted that there is inadvertent mistake on the part of the Assessing Authority. It is contended that though the Assessing Authority made assessment under Section 43 of the OVAT Act, but, by relying upon the statement of audit visit report, he has committed gross mistake. Therefore, the error, which has been committed, should have been taken into consideration and the same