M/s. Kailash Distributors Diesels & Auto Sales, Jagatpur … v. ….. Mr. Sandeep Kumar Jena, Advocate Opposite Parties Mr. Sunil Mishra, SC for Revenue
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 5850 of 2024 M/s. Kailash Distributors Diesels & Auto Sales, Jagatpur ….. Petitioner State of Odisha and others Vs. ….. Mr. Sandeep Kumar Jena, Advocate Opposite Parties Mr. Sunil Mishra, SC for Revenue CORAM:
Legal Reasoning
DR. JUSTICE B.R. SARANGI MR. JUSTICE G. SATAPATHY
Decision
ORDER 04.04.2024 Order No. 02. This matter is taken up by hybrid mode. 2. Heard Mr. Sandeep Kumar Jena, learned counsel for the petitioner and Mr. Sunil Mishra, learned Standing Counsel for the Revenue. 3. The petitioner, by means of this writ petition, seeks to quash the order dated 02.03.2023 passed in S.A. No. 343(V) of 2016-17, by which the Odisha Sales Tax Tribunal, Cuttack, while condoning the delay, has rejected the Second Appeal, as the First Appeal filed with delay of 283 days was rejected summarily by the First Appellate Authority. 4. Mr. Sandeep Kumar Jena, learned counsel for the petitioner contended that admittedly the petitioner, as an assessee, had filed First Appeal challenging the order of assessment passed by the assessing authority. As the said First Appeal was filed causing delay of 283 days, the same was not entertained and rejected summarily by the First Appellate Authority. Against the said order of rejection passed by the First Appellate Authority, the petitioner preferred Second Appeal, which was also with delay of 268 days, and the Sales Page 1 of 4 Tax Tribunal condoned the delay subject to deposit of cost of Rs.3000/- and thereafter passed the order impugned confirming the summarily rejection of the First Appeal, which was filed with delay of 283 days. It is contended that the Tribunal is not justified in confirming the summarily rejection order passed by the First Appellate Authority and, therefore, the petitioner has approached this Court by filing the present writ petition. 5. Mr. Sunil Mishra, learned Standing Counsel for the Revenue contended that the petitioner having not acted bonafidely, reason being he had approached the First Appellate Authority with 283 days delay and even though the First Appeal was summarily rejected, he filed the Second Appeal also with delay of 268 days and on payment of cost of Rs.3000/- although the delay was condoned and the Second Appeal was entertained, but the same was not admitted and, thereby, summarily rejection order passed by the First Appellate Authority was confirmed. It is contended that against the order passed by the First Appellate Authority, the petitioner could have preferred revision. In any case, since the Tribunal has confirmed the summarily rejection order passed by the First Appellate Authority on the ground of delay, the same is well justified and does not warrant interference by this Court. 6. Having heard learned counsel for the parties and after going through the records, this Court finds that on 18.09.2008 Audit Team of Cuttack-II Circle paid a visit of the business premises of the petitioner and submitted AVR (Audit Visit Report) on 30.09.2008 in the Circle Office covering the tax period from 01.04.2005 to 31.07.2008. After thorough verification of books of accounts and other documents calculated a tax liability of Rs.5,214.00. The Audit Team produced AVR before the Assessing Authority, i.e., Sales Page 2 of 4 Officer, Cuttack-II Circle-opposite party no.5, who made assessment, vide order dated 23.12.2008, demanding Rs.5,56,657.00 towards differential taxes, interest and penalty. Aggrieved by such assessment order dated 23.12.2008, the petitioner preferred First Appeal No. AA/09/OVAT/CUIIK2009-10 before opposite party no.4, who, after hearing the petitioner, disposed of the same, vide order dated 11.11.2013, remanding the matter back to the forum below for re- assessment within three months from the date of receipt of the order. The opposite party no.5, on 23.02.2015, passed the reassessment order demanding from the petitioner Rs.10,52,298.84 towards tax, interest and penalty. Aggrieved by such order of assessment dated 23.02.2015, the petitioner approached opposite party no.4 by preferring First Appeal Case No. AA/42/OVAT/CUII/2015-16 causing delay of 283 days, but the same was summarily rejected, vide order dated 16.02.2016, for the reason of non-submission of memorandum of appeal within the prescribed period of law and for non-submission of satisfactory compliance to the show cause notice. Aggrieved by the order dated 16.02.2016 passed by the First Appellate Authority, the petitioner approached the Odisha Sales Tax Tribunal, Cuttack by filing S.A. No. 343 (V) of 2016-17 with delay of 268 days, along with a petition for stay operation of the order passed by the forum below and also with a petition for condonation of delay in filing the Second Appeal. The Tribunal condoned the delay subject to payment of Rs.3000/-, entertained the Second Appeal and confirmed the order passed by the First Appellate Authority summarily rejecting the First Appeal on the ground of delay, instead of remanding the matter to the First Appellate Authority for reconsideration. If revision lies against the order of the First Appellate Authority, the Sales Tax Tribunal could have also Page 3 of 4 held that the Second Appeal is not maintainable. Thereby, neither the Sales Tax Tribunal has stated that it has no jurisdiction nor the same has been pointed out by the learned State Counsel appearing in the case stating with regard to maintainability of the Second Appeal. In any case, since Second Appeal has been entertained and order has been passed confirming the summarily rejection order passed by the First Appellate Authority on the ground of limitation, in that case, this Court is of the considered view that the Sales Tax Tribunal has committed gross error apparent on the face of the record in not remanding the matter to the First Appellate Authority. Thereby, the order impugned so passed by the Tribunal, so also the order passed by the First Appellate Authority rejecting the appeal summarily cannot be sustained and the same are hereby quashed. The matter is remitted back to the First Appellate Authority for fresh adjudication in accordance with law. 7. With the above observation and direction, the writ petition stands disposed of. 8. Needless to say, the petitioner shall cooperate the opposite party-authorities for early disposal of the matter as it is an old case of the year 2008. If the petitioner does not cooperate, in that case, the opposite party-authorities are at liberty to take action in accordance with law. Signature Not Verified Digitally Signed Signed by: SUBHASMITA DAS Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa Date: 05-Apr-2024 14:29:26 Subhasmita JUDGE (DR. B.R. SARANGI) (G. SATAPATHY) JUDGE Page 4 of 4