Orissa High Court
WP(C)/12717/2004 on 1 March, 2021
W.P.(C) No.12717 of 2004
04. 01.03.2021 1. Heard Mr. R.P. Kar, learned counsel for the Petitioner and
Mr. A.K. Nanda, learned Additional Government Advocate for
the State-Opposite Parties.
2. The challenge in the present writ petition is to the levy and
collection of Orissa Forest Development Tax under Section 3
of the Orissa Forrest Development (Tax on Sale of Forest
Produce By Government of Orissa Or Orissa Forest
Development Corporation) Act, 2003, which subsequently
became an Act, effective from 18th July, 2003.
3. At the time of issuing notice in the present petition, an
interim order was passed on 4th January, 2005 in the following
terms:
"Issue notice as above.
It is submitted by Mr. Ray that the rate of tax was
fixed only by notification dated 30th of July, 2003
and hence sales of Kendu leaves prior to the 30th
of July, 2003 cannot be subjected to Forest
Development Tax under the impugned Act.
He further submitted that in any case all the sales
in which the petitioner has purchased Kendu
leaves are in course of inter-State trade and
commerce, but under the impugned Act, sales in
course of inter-State trade and commerce have
also been covered for the purpose of tax.
In view of the aforesaid submission of Mr. Kar,
we direct that no Forest Development Tax will be
collected on sales to the petitioner prior to the 30th
of July, 2003. However, for subsequent sales, tax
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be paid by the petitioner without prejudice to its
rights and contentions. In case, the petitioner
succeeds in this writ petition, the petitioner will be
entitled to interest at the rate applicable on fixed
deposit.
This order will not prohibit the petitioner from
claiming before the concerned authority that it is
entitled to exemption on inter-State sales or export
sales and if such claim is made before the
authority, the said authority will take a decision in
accordance with law."
4. Subsequently in a batch of petitions, the lead case being
Writ Petition (Civil) No.12373 of 2003, this Court delivered a
judgment dated 10th April, 2019 where, while holding that the
State could enact the legislation levying tax only in relation to
transactions within the State of Orissa, the Court also held that
considering the fact that the Act came into force only 30th July,
2003, the tax collected prior thereto was required to be
refunded. The directions issued in para 20 & 21 read as
follows:
"20. It is made clear that the amount of tax
collected, which is lying with the Corporation,
will be refunded by the Corporation and if it is
lying with the State Government, the same will be
refunded by the State Government.
21. The refund shall be made within a period of
four months from the date of receipt of a copy of
this judgment along with application for refund
from the petitioners individually. If the amount is
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not refunded, as directed, within four months,
then claimant will be entitled to interest at the rate
of 8% from the date of depositing the amount."
This Court further clarified in para 5 of the said order
as follows:
"5. While parting with the case, this Court feels it
necessary to clarify that since in view of similar
interim orders passed by this Court on different
dates in respective writ petitions the petitioners
are paying Forest Development Tax in respect of
the inter-State sales after 30th July, 2003, they are
entitled to refund of the same along with interest
applicable on fixed deposits in terms of said
interim orders."
5. Against the above judgment dated 10th April, 2019, the State
of Orissa has filed Civil Appeal No.7236 of 2019 in the
Supreme Court. While granting leave by an order dated 6th
September, 2019 it was directed by the Supreme Court as
under.
"There shall be ad interim stay of operation of
the judgment and order dated 10.04.2019 passed
by the High Court of Orissa at Cuttack in Writ
Petition (Civil) No.12373 of 2003 till the next
date of hearing.
Counsel for the petitioner-State submits that
another 139 special leave petitions have been
filed against the impugned judgment.
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The petitioner may ensure that office objections
in all these matters are removed within four
weeks from today so that all cases can be listed
together on the same day before one Bench."
6. Resultantly the prayer of the Petitioner, that the petition
should be allowed in terms of the judgment dated 10th April,
2019 of this Court in Writ Petition (Civil) No.12373 of 2003
cannot be granted. However, its make clear that the question
whether such relief can be granted will have to await the
outcome of Civil Appeal No.7236 of 2019 in the Supreme
Court. Whatever relief, if any, is granted to the Respondents in
the aforementioned Civil Appeal, would also be granted in
identical terms to the present Petitioner. As a corollary, in the
event the State of Orissa succeeds in the Supreme Court and
the judgment dated 10th April, 2019 of this Court is set aside,
then obviously no further relief would be required to be
granted.
7. The writ petition is disposed of in the above terms.
8. An urgent certified copy of this order be issued as per rules.
( Dr. S. Muralidhar)
Chief Justice
C.R. Biswal/
B.K. Barik
( B.P. Routray )
Judge
