Case Law Details
Krishna Solvent Extraction Pvt. Ltd. Vs Commissioner of Sales Tax (Orissa High Court)
1. The present appeal questions an order dated 28th September, 2021 passed by the Commissioner of Sales Tax, Odisha by way of a Suo motu Revision under Section 79(1) of the OVAT Act, 2004 for the period 1st October, 2015 to 30th September, 2016, thereby setting aside an order dated 29th June, 2018 of the Additional Commissioner of Sales Tax (Appeal), North Zone, Sambalpur in First Appeal Case No.AA-40(V)/2018-19.
2. This appeal already stood admitted by the order dated 19th January, 2022.
3. The following question is framed for consideration:-
“Whether despite remedy of an Appeal under Section 78 of the OVAT Act being available to the Department against the order of the Appellate Authority in favour of the Assessee, the Commissioner could have exercised suo motu revisional power under Section 79(1) of the OVAT Act?”
4. The relevant facts as far as present appeal is concerned, is that challenging an re-assessment order dated 28th March, 2018 passed by the Deputy Collector, Sales Tax, Bargarh Circle, Bargarh, the Appellant preferred an appeal before the Additional Commissioner of Sales Tax (Appeal), North Zone, Sambalpur. The said appeal came to be allowed by the order dated 29th June, 2018, in terms of which it was held that the Appellant had paid excess tax amount to Rs.2,25,277/-. It was directed to be refunded to the Appellant.
5. Nearly two year thereafter, the Commissioner of Sales Tax invoked suo motu revisional power under Section 79(1) of the OVAT Act and issued a show-cause notice dated 12th May, 2020 to the Appellant. It was alleged that there was less reversal of ITC amounting to Rs.39,47,338/- resulting in underassessment of tax and irregular allowance of tax credit of Rs.7,16,865/-. Thereafter the impugned order dated 28th September, 2021 came to be passed by the Commissioner determining the tax payable by the Appellant to be Rs.51,55,791/- apart from penalty.
6. In nearly identical facts, this Court has by the order dated 22nd December, 2022 in W.P.(C) No.5129 of 2016 in the case of M/s. Sarala Project Works Pvt. Ltd. v. Additional Commissioner of Sales Tax, Cuttack & Others, held as under:
“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 that view of the matter, the above question framed is answered in favour of the Appellant and against the Department. The impugned order dated 28th September, 2021 of the Commissioner is hereby set aside.
8. The appeal is allowed in the above terms. No order as to costs.
