Orissa High Court
M/S . Tex Marketing Agency & vs Commissioner Of Sales Tax on 11 May, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 11481 of 2022
M/s . Tex Marketing Agency & .... Petitioners
Another
Mr. Sanjeev Udgata, Advocate
-versus-
Commissioner of Sales Tax, Odisha .... Opposite Parties
& Others
Mr. Sunil Misra, ASC (CT &
GST Organization)
CORAM:
JUSTICE JASWANT SINGH
JUSTICE M.S. RAMAN
ORDER (Oral)
Order No. 11.05.2022
01. 1. This matter is taken up by virtual/physical mode.
2. The Petitioner, Tex Marketing Agency representing through
its managing partner Sri Hariharan Balakrishnan, is before this
Court invoking provisions of Article 226/227 of the Constitution of
India, seeks intervention in the order dated 5th April, 2022 passed in
revision case No.BH-IIAST-223 to 224E of 2017-18 by the
Commissioner of Sales Tax, Odisha.
3. Challenging the assessment order dated 27.04.2015
formulated by the Deputy Commissioner of Sales Tax,
Bhubaneswar-II Circle, Bhubaneswar raising a demand of
Rs.39,05,216/- for the period from 1st December, 2014 to 31st
August, 2015 under Section 10 the Odisha Entry Tax Act, 1999 (for
short "the OET Act"), the Petitioner preferred to avail the remedy
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of appeal under Section 16 before the Additional Commissioner of
Sales Tax (Appeal) South Zone, Berhampur which has come to be
dismissed vide Order dated 28th April, 2017.
4. The Petitioner carried the matter further in second appeal
before the Odisha Sales Tax Tribunal by way of filing
Memorandum of Appeal under Section 17 of the OET Act and
simultaneously by filing application under sub-section (7) of
Section 17 before the Commissioner of Sales Tax, Odisha sought
for stay of realization of the demand as affirmed by the First
Appellate Authority.
5. Sub-section (7) of Section 17 reads as under:-
"Where a dealer or person has preferred an appeal
under sub-section (1), the Commissioner may, stay
realization, either in part or in full, the amount of tax or
interest or penalty, as the case may be, remaining
outstanding for recovery as a result of disposal of appeal
under sub-section (7) of Section 16, on application in that
behalf filed by the dealer within the period as provided for
Sub-section (1)."
6. As the matter stood thus, the Petitioner was served with a
notice to show cause bearing No.7875/CT dated 25th April, 2022
(Annexure-6) issued by the Joint Commissioner of Sales Tax, CT &
GST Circle, Bhubaneswar-II, Bhubaneswar, whereby it was
directed to deposit an amount of Rs.26,72,018/- (interest =
Rs.68,539 /- + penalty = Rs.26,06,479/-) consequent upon rejection
of petition under Section 17(7) by the Commissioner of Sales Tax.
7. The Petitioner has alleged in the writ petition that it was not
afforded reasonable and adequate opportunity to represent before
the Commissioner. As it had deposited entire tax liability as
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demanded and confirmed by the First Appellate Authority, the
Commissioner of Sales Tax should have applied his mind to the
facts of this case and directed for stay the realization of
Rs.26,72,018/-comprising of interest and penalty) during the
pendency of second appeal before the Odisha Sales Tax Tribunal.
8. The counsel for the Petitioner drawing attention to
paragraph 14 of the writ petition submitted that prior to COVI-19
Pandemic period when the matter was posted for hearing, the same
were not being taken up in spite of the petitioner was present before
the Commissioner. During the pandemic period when the matter
was posted for hearing, the petitioner was prevented from appearing
for the justified cause. It has been averred in the writ petition that
on the last occasion when the matter appears to have been posted on
5th April, 2022, "the notice was received by the Petitioner in less
than 24 years before the schedule date of hearing". However, the
Petitioner contacted his lawyer, but as he was out of station could
not appear before the Commissioner of Sales Tax. The said
authority without considering the difficulty has proceeded with the
matter ex parte.
9. Mr. Sanjeev Udgata, learned counsel for the Petitioner also
drew attention of this Court to Annexure-8 series to show his bona
fide that on earlier occasions, i.e., 27th April, 2019, 1st June, 2019
and 3rd August, 2019 (period prior to COVID-19 pandemic) when
the matter was being posted, he was vigilant before the
Commissioner of Sales Tax in connection with the hearing of the
said application filed under Section 17(7) of the OET Act.
However, the said Authority did not take up the matter for hearing.
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10. Mr. Sunil Mishra, Additional Standing Counsel for CT and
GST Organization submitted that though tax component out of the
total demand raised in the assessment and confirmed by the Fist
Appellate Authority stands deposited by the Petitioner, he has not
deposited the rest of the demand constituting interest and penalty.
He also submitted that as paragraph 30 of the Judgment rendered by
this Court in the case of Reliance Industries Ltd. Vrs. State of
Odishha, (2008) 16 VST 85 (Ori) has been varied by the Hon'ble
Supreme Court in SLP Nos. 14454-14778 of 2008 (State of Odisha
Vrs. Reliance Industries Ltd.), the Petitioner is liable to discharge
its liability by depositing interest as also the penalty.
11. This Court is satisfied that the Petitioner has been diligently
pursuing its matter (apparent from documents act Annexure-8
series. It was given short notice for appearing before the
Commissioner of Sales Tax in connection with hearing and the non-
appearance was on account of non-availability of his lawyer in the
station, which fact remained uncontroverted at the time of hearing
of present petition.
12. Without entering into the merits of the matter, this Court
feels that ends of justice would be best served if the Petitioner is
relegated to the authority-Commissioner of Sales Tax by setting
aside ex parte Order dated 5th April, 2022 passed in revision case
No. BH-IIAST- 223 to 224E/ 2017-18. This Court, therefore, sets
aside the Order dated 05.04.2022 and restore the revision case No.
BH-IIAST- 223 to 224E/ 2017-18 to file. For this purpose, the
Petitioner is directed to appear before the Commissioner of Sales
Tax on 31st May, 2022 along with the certified copy of this order.
The Commissioner of Sales Tax may hear the matter on the said
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date or adjourn the matter to any other date for hearing. Needless to
say that the Commissioner of Sale Tax is free to take appropriate
decision without being influenced by any observation made supra.
After hearing the petitioner, the Commissioner of Sales Tax shall
pass appropriate order in accordance with law. The petitioner is not
to be allowed unnecessary adjournments.
13. With the above observation and direction, the writ petition
is disposed of.
(Jaswant Singh)
Judge
(M.S. Raman)
Judge
Laxmikant May 11, 2022 Cuttack
