Advocates:
['M/S TUSHAR KANTI SATPATHY', '', 'R K JENA', 'S R MISHRA']

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IN THE HIGH COURT OF ORISSA AT CUTTACK

W.P.(C) No.5129 of 2016

M/s. Sarala Project Works Pvt. Ltd.

….

Petitioner

Mr. Tushar Kanti Satpathy, Advocate

-versus-

Additional Commissioner of Sales Tax,

Cuttack & Others

….

Opposite Parties

Mr. Susanta Kumar Pradhan, ASC

CORAM:

THE CHIEF JUSTICE

JUSTICE M. S. RAMAN

Order No.

ORDER

22.12.2022

Dr. S. Muralidhar, CJ.

05.

1. The short ground on which the impugned notice dated 11^th

January, 2016 issued by the Commissioner of Commercial Taxes,

Odisha, Cuttack to the present Petitioner has been challenged, is that

it is a violation of Section 79(4)(b) of the Odisha Value Added Tax

Act, 2004 (OVAT Act).

2. The facts in brief are that the Petitioner is a registered dealer

under the OVAT Act and engaged in undertaking works contracts.

An audit visit report was submitted under Section 42 of the OVAT

Act in respect of the Petitioner by the audit visit tam for the period

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20^th December, 2007 to 31^st March, 2010. Thereafter, an assessment

order was passed on 3^rd February, 2011 allowing the Petitioner

refund Rs.1.07 crores.

3. The first appeal was filed by the Petitioner under Section 77 of

the OVAT Act was disposed of by the Joint Commissioner of Sales

Tax, Balasore (JCST) on 30^th May, 2012 allowing the TDS and other

deduction and reducing the refund to Rs.1.2 crores. According to the

Petitioner, no further challenge was raised by the Petitioner to the

said order of the JCST.

4. Nearly four years later, the impugned notice dated 11^th January,

2016 was issued by the Commissioner invoking the suo motu power

of revision under Section 79 (1) of the OVAT Act for the said period

on the ground that the deduction allowed by the JCST was erroneous

and prejudicial to the interests of the Revenue.

5. Section 79 (4) (b) and Section 79 (5) of the OVAT Act read as

under:

“79. Revisional power of Commissioner. –

(4) The Commissioner shall not revise, under sub-section

(1), any order, if-

(a) xxxxxxxxx

xxxxxxxx

(b) The order has been made a subject matter of appeal

under section 77 or 78”

“(5) Notwithstanding anything contained in sub-section (4),

the Commissioner may pass an order under sub-section (1)

on any point which has not been raised and decided in an

appeal referred to in clause (b) of sub-section (4) before the

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expiry of the period specified in clause (c) of the said sub-

section.”

6. The specific averment of the Petitioner that the very purpose of

which notice under Section 79(4) of the OVAT Act was issued by

the Commissioner was already the subject matter of the appeal

before the JCST, and that the Department itself could have gone in

appeal against the said order under Section 78 of the OVAT Act has

remained uncontroverted. In terms of Section 79(4)(b) read with

Section 79(5) of the OVAT Act there is a clear statutory bar to the

Commissioner exercising suo motu revisional power in such

circumstances.

7. In response to the notice issued in the present petition, a counter

affidavit has been filed by the Department. Inter alia, it is stated that

the Petitioner ought not have approached this Court at the stage of

notice and it is only after an order passed pursuant to the impugned

notice issued that the Petitioner has a remedy of challenge to such

order.

8. It must be noted that at the outset that while issuing notice in the

present petition on 18^th May, 2016 this Court granted a stay of

further proceeding pursuant to the impugned notice. That stay has

continued since.

9. The present petition has been pending for over six years. In the

circumstances, the Court sees no useful purpose being served in

relegating the Petitioner at this stage to the Commissioner for an

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order on the impugned show cause notice, particularly since it

appears to have been