Case Law Details
Hindustan Coca-Cola Beverages Pvt. Ltd. Vs Commissioner (Orissa High Court)
In the present writ petition, Orissa HC granted one more opportunity to the petitioner in view of provisio 81 (1) of Odisha VAT.
Petitioner alleged that appeal order no. 3623 dated 21.10.2023 mentioned in intimation dated 30.11.2024 was never communicated to petitioner as mandate of Rule 121 in Odisha VAT.
It was argued on behalf of the revenue that order dated 21.10.2024 was mentioned in the intimation which is part of the writ petition and hence was well in knowledge of the petitioner. Order dated 21.10.2024 was rectification made to the appeal order dated 24.04.2023 which was dispatched by post to the petitioner. Only discrepancy in the intimation is reference to the rectification order as appeal order.
It was argued by the petitioner that, impugned intimation talks about appeal order dated 21.10.2023. It was not served upon the petitioner. The rectification order is dated 21.10.2024. The rectification there was enhancement without giving opportunity of hearing by which there has been reduction in tax and increase in interest, but the aggregate demand remained the same.
After considering the submissions of both the parties, Hon’ble HC have held that appeal order no.3623 dated 21.10.2023 erroneously mentioned as appeal order no. 3623 dated 21.10.2024. The order reference has been correctly stated in the intimation, but the date carries a mistake. It is mistake committed by revenue in shape of typographical error in printing date of the order mentioned in impugned intimation. Petitioner’s contention is that the order mentioned in impugned intimation was not served. Proviso in sub-section (1) of section 81 says that an amendment, which has effect of enhancing an assessment or otherwise increase liability of the assessee shall not be made unless the authority has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard. Impugned rectification order and intimation are hereby quashed and one more opportunity be granted to petitioner.
FULL TEXT OF THE JUDGMENT/ORDER OF ORISSA HIGH COURT
1. Mrs. Roy Choudhury, learned advocate appears on behalf of petitioner and submits, impugned is, inter alia, intimation dated 30th November, 2024 intimating that the Joint Commissioner of Sales Tax (Appeal), in its appeal order no.3623 dated 21st October, 2023 had dismissed the appeal. As such, petitioner then became liable to pay tax and interest within 15 days of receipt, failing which recovery proceeding will be initiated. She submits, mentioned appeal order was never communicated to her client. She relies on rule 121 in Odisha Value Added Tax Rules, 2005, reproduced below.
“121. Order of assessment, appeal or revision to be communicated to the dealer.—
A copy of the order of assessment, appeal or revision shall be supplied to the concerned dealer free of cost and without application for the same.”
She seeks interference.
2. Mishra, learned advocate, Standing Counsel appears on behalf of revenue and draws attention to annexure-4 being order dated 21st October, 2024, referred in the intimation. He submits, the order is one of rectification made to order dated 24th April, 2023. It having been disclosed in the writ petition is demonstration that petitioner was communicated the rectification order, subject matter of the intimation.
3. So far as appeal order dated 24th April, 2023 is concerned, Mr. Mishra hands up copy of the order and attached thereto postal receipt showing dispatch to petitioner on date appearing to be sometime in July, 2023. Mr. Mishra attempts to give the date as in the postal stamp to be 4th July, 2023. As such he submits, only discrepancy in the intimation is reference to the rectification order as appeal order. It is not a discrepancy inasmuch as the appeal order merges in the rectification order, to become the appeal order.
4. Roy Choudhury in reply points out, impugned intimation talks about appeal order dated 21st October, 2023. It was not served on her client. The rectification order is dated 21st October, 2024.
5. In trying to sort-out the confusion created we see that mention of appeal order gives no.3623 and date 21st October, 2023. It carries error inasmuch as the rectification of appeal order is order no.3623 dated 21st October, 2024. The order reference has been correctly stated in the intimation but the date carries a mistake. Revenue committed error, albeit typographical error in printing date of the order mentioned in impugned intimation. Petitioner’s contention is that the order mentioned in impugned intimation was not served. It could not have been as the particulars of the order themselves carry an error. However, we are convinced that petitioner was aware all along.
6. At this stage Mrs. Roy Choudhury submits, by the rectification there was enhancement without giving opportunity of hearing. Mr. Mishra submits, by the rectification there has been reduction in tax and increase in interest, but the aggregate demand remained the same.
7. Proviso in sub-section(1) of section 81 says that an amendment, which has effect of enhancing an assessment or otherwise increase liability of the assessee shall not be made unless the authority has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard. Going by submission made on behalf of revenue, if there has been increase in the amount of interest by the rectification, petitioner was entitled to a notice for being heard. The concept of aggregate demand remaining same is not supported by the provision.
8. Impugned rectification order and the intimation are set aside and quashed. Petitioner will forthwith communicate certified copy of this order to the authority within 24th January, 2025 and obtain date of hearing, for purpose of rectification. In event of omission to communicate as directed, impugned order and intimation will automatically stand restored.
9. The writ petition is disposed of.
Author Bio
