Rabindra Kumar Sahoo vs The Commissioner Of Commercial
2022 Latest Caselaw 4768 Ori

                IN THE HIGH COURT OF ORISSA AT CUTTACK
                          W.P.(C) No. 18364 of 2022
       Rabindra Kumar Sahoo                    ....                    Petitioner
                                                        Mr. R.P. Kar, Advocate
                                          with Mr. Asit Kumar Dash, Advocate
                                        -versus-
       The Commissioner of Commercial ....                 Opposite Parties
       Taxes, Odisha, Cuttack & Others
                                       Mr. Susant Kumar Pradhan, ASC for
                                                  CT & GST Organization.

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

15.09.2022 Order No.

01. This matter is taken up by virtual/physical mode.

1. Challenging the order dated 2nd/30th December, 2021 passed by the Commissioner of CT & GST, Odisha, Cuttack directed against the order dated 2nd August, 2018 passed by the Additional Commissioner of Sales Tax (Appeal), Central Zone, Odisha in suo motu revision pertaining to the tax periods from 1st April, 2005 to 28th October, 2010, the Petitioner has approached this Court questioning the propriety of the Commissioner of CT & GST in substituting the operative portion of the order by way of corrigendum thereby changing his own view.

2. Alleging that the Commissioner of Sales Tax sitting in Appeal against the suo motu revision order while dealing with a petition filed by the Petitioner for modification of order dated 2nd/30th December, 2021 before him on 5th April, 2022 could not have changed the decision already taken by him in the appellate order.

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3. Mr. R.P. Kar, counsel for the Petitioner submitted that vide order dated 2nd/30th December, 2021, while disposing of Appeal under Section 18(5) of the Odisha Entry Tax Act, 1999 against the order in suo motu revision passed the following order:-

"Reliance upon the aforementioned judgments, the forum below feels it proper to set aside the order dated 2nd August, 2018 of the Additional Commissioner of Sales Tax (Appeal), Central Zone, Cuttack and in exercise the power conferred under Section 6 of the OVAT Act, the case is transferred to the Revisional Authority i.e. Id Additional Commissioner of Sales Tax, Angul Range, Angul who is the proper authority to dispose of this case on merit as per provision of law after affording due opportunity to the dealer appellant.

The petition is disposed of accordingly."

However, the Commissioner of CT & GST, Odisha, Cuttack by way of corrigendum order dated 5th April, 2022 as if, he is exercising review powers against the appellate order passed by him on 2nd/30th December, 2021 passed the following order:-

"Accordingly, this forum by exercising power conferred under Section 20 of the OET Act, 1999 is modifying the direction given in the revision order issued vide No-16250/CT & GST date 31.12.2021 and pleased to confirm the order of Id Additional Commissioner of Sales Tax (Appeal) C.Z in Revision Case No-Suo Motu-07/2018-19 dated 02.08.2018 as just and proper.

The case is disposed of accordingly."

Mr. Kar, counsel further submitted that the Commissioner has no authority and jurisdiction to amend the result of appeal passed under Section 18(5) by way of corrigendum in exercise of power under Section 20 as the statute does not confer power of review. He further submitted that such an order confirming the revision order passed by the Additional Commissioner of Sales Tax

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(Appeal) in suo motu revision case has been passed only to cover up the period of limitation. Placing reliance on Annexure-16, which is an order dated 22nd October, 2021 passed by self same Commissioner in the matter of another dealer, namely, M/s. Kamlesh Construction Pvt. Ltd., where under identical fact- situation, the Commissioner had quashed the suo motu revision proceedings initiated and concluded by the Additional Commissioner of sales Tax (Appeal).

4. At this stage, Mr. Susanta Kumar Pradhan, Additional Standing Counsel sought for four weeks time to file counter affidavit.

5. Issue notice for 14th December, 2022.

Since Mr. Susanta Kumar Pradhan, Additional Standing Counsel appeared, he waves off notice on behalf of the Opposite Parties.

Let requisite number of copies of the writ petition be served on him within three working days.

I. A No. 12281 of 2022

6. As an interim measure, no coercive steps shall be taken against the Petitioner till the next date of hearing.

(Jaswant Singh) Judge

(M.S. Raman) Judge

Laxmikant September 15, 2022 Cuttack