M/S. Jindal India Thermal Power vs The Commissioner Of Commercial
2022 Latest Caselaw 3059 Ori

                IN THE HIGH COURT OF ORISSA AT CUTTACK
                          W.P.(C) No. 15798 of 2022

       M/s. Jindal India Thermal Power         ....                     Petitioner
       Limited
                                                    Mr. S.P. Misra, Sr. Advocate
                                                    with Mr. R.P. Kar, Advocate,
                                                    Mr. Asit Dash, Advocate
                                                    and Mr. A. Dash, Advocate

                                       -versus-

       The Commissioner of Commercial          ....              Opposite Parties
       Taxes & GST, Odisha, Cuttack &
       Others

                                         Mr. Sunil Mishra, Addl. Standing
                                         Counsel for CT & GST Organisation

                         CORAM:
                         JUSTICE JASWANT SINGH
                         JUSTICE M.S. RAMAN
                                        ORDER (Oral)

11.07.2022 Order No.

02. 1. This matter is taken up by virtual/physical mode.

2. Challenging the assessment order dated 31.03.2022 passed under Section 10 of the Odisha Entry Tax Act, 1999 by the Sales Tax Officer, Angul Circle, Angul by way of writ petition the Petitioner inter alia pleaded that :-

a. The assessment order vide Annexure-19 pursuant to notice dated 13.01.2022 in Form-E 32 for the tax periods from 1.4.2013 to 30.09.2015 is not tenable inasmuch as the assessment for the year 2013-14 is barred // 2 //

by limitation has envisaged in Section 10(1) of the said Act;

and

b. On account of misconception and misunderstanding of Accounting Standard the assessing authority construed addition of Rs.6019,11,90,908/- shown in the balance sheet against Note-11 (Tangible Assets) for the year 2014-15 as if the entry of goods have been effected during said period.

3. Mr. Surya Prasad Misra, Senior Counsel appearing for the Petitioner submitted that the assessing authority was not competent to issue notice for reassessment under Section 10 in respect of 2013-14 on 13.01.2022 as seven years from the end of the year lapsed on 31.03.2021. It is next contended that the additions towards tangible assets shown in the balance sheet for the year 2014-15 were relatable to procurement of goods from 2009-10 onwards which included work-in-progress of previous year and as and when the goods were brought into local area the entry tax component has been disclosed in the returns and paid the same accordingly. Therefore, in essence it is submitted by the learned senior counsel that entry tax liability already discharged for the earlier years could not form part of re-assessment for the year 2014-

15.

4. Mr. Sunil Mishra, Addl. Standing Counsel for the CT & GST Organisation submitted that the plea of limitation was never raised before the assessing authority and the assessing authority, on

// 3 //

non-cooperation of the Petitioner and improper explanation, had made best judgment assessment which needs no interference.

5. At this juncture, it is relevant to notice Section 10(1) of the OET Act which reads as follows:-

"10. Reassessment in certain cases.-- (1) Where for any reason all or any of the Scheduled goods brought by a dealer has escaped assessment of tax, or where value of all or any of the scheduled goods has been under-assessed, or any deduction has been allowed wrongly, the assessing authority, on the basis of information in his possession, may, within a period of seven years from the end of the year to which the tax period relates, serve a notice on the dealer in such form and in such manner as may be prescribed and after making such enquiry as he considers necessary and after giving the dealer a reasonable opportunity of being heard, proceed to assess the dealer accordingly."

6. It is apparent from the aforesaid provision that the contention of the Petitioner is acceptable to the extent that the impugned notice for re-assessment for the year 2013-14 under Section 10 of the said Act ought not to have been issued on 13.01.2022.

On this score, therefore, the assessment order deserves to be set aside.

7. On the next plea of capitalization of assets, the same requires to be factually adjudicated by the authority.

// 4 //

8. Mr. Sunil Mishra, learned Additional Standing Counsel for the CT&GST Organisation urged that since the re-assessment has been framed by taking into consideration figures for entire period covering 2013-14 and 2014-15, segregation may not possibly be made at this stage.

9. Since it is observed that the assessment for the period 2013- 14 has become time barred and the assessing authority ceased to have power to initiate proceeding for reassessment under Section 10 on 13.01.2022 in respect of 2013-14, Mr. Sunil Mishra sought for short accommodation to obtain instruction regarding severance of demand. The oral prayer of Sri Mishra is allowed and the matter now stands adjourned to 26.07.2022 on which date Mr. Sunil Mishra shall place on record necessary written instruction before this Court. Mr. Sunil Mishra is also directed to ascertain the fact of sufferance of entry tax at earlier point of time on the very goods which is subject-matter of instant re-assessment, as contended by Mr. Surya Prasad Mishra, Senior Advocate for the petitioner.

10. List on 26th July, 2022.

(Jaswant Singh) Judge

(M.S. Raman) Judge

Aks July 11, 2022 Cuttack