Orissa High Court
M/S Siemens Ltd vs State Of Odisha And Others on 24 April, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 5511 of 2015
M/s Siemens Ltd. ..... Petitioner
Mr. B. Mohanti, Sr. Adv.
Vs.
State of Odisha and others ..... Opposite Parties
Mr. Sunil Mishra, SC [CT & GST]
CORAM:
DR. JUSTICE B.R. SARANGI
MR. JUSTICE M.S. RAMAN
ORDER
24.04.2023
Order No. This matter is taken up through hybrid mode.
06.
2. Heard Mr. B. Mohanti, learned Senior Counsel appearing along
with Mr. A. Mohanty, learned counsel for the petitioner and Mr. Sunil
Mishra, learned counsel appearing for the CT & GST.
3. The petitioner has filed this writ petition seeking to quash the
assessment order dated 20.02.2015 passed by the Assessing Authority-
cum-Joint Commissioner of Sales Tax, Sundargarh Range, Rourkela
under Annexure-1, by which direction has been issued to pay an
amount of Rs.21,12,43,767/- to the Government Treasury within thirty
days from the date of receipt of the notice and produce the receipt in
proof of payment in the office within seven days from the date of
payment, failing which the said sum will be recoverable from the
petitioner as an arrears of public demand in accordance with the
provisions of the Act. It has been further directed that in case the
petitioner failed to pay the amount and produce evidence of such
payment within due date, penalty at the rate of 2% per month on the
unpaid amount of tax, interest, penalty or any other due under the Act
will be imposed under Sub-section (5) of Section 50 and shall be liable
to pay interest under Sub-section 50. It has been further observed that if
the petitioner dissatisfied with the order imposing penalty/assessment
and penalty or charging interest under Section 34, it may prefer appeal
before the Addl. Commissioner of Sales Tax, Northen Zone, Cuttack
within thirty days.
4. Mr. B. Mohanti, learned Senior Counsel appearing along with
Mr. A. Mohanty, learned counsel for the petitioner vehemently
contended that though there is availability of appellate forum against
the order passed by the assessing authority, but the order so passed is
germane to be considered by this Court inasmuch as no useful purpose
would be served in the event the petitioner approached the appellate
authority because of the amount involved in the matter. It is brought to
the notice of the Court that the assessing officer has not issued any
notice of show cause to the petitioner and, as such, no opportunity of
hearing has been given to the petitioner. Apart from the same the
assessing authority has taken note of the fact that the petitioner has
executed a composite work and relying upon the same the assessment
made, cannot be sustained in the eye of law. It is further contended that
the judgment which has been relied upon by the assessing authority to
impose such assessment, i.e., M/s Cinzac Technical Service v. State of
Kerala, (2009) 25 VST, 166-167 (Ker.), has already been set aside by
the apex Court. Thereby, on a wrong premises, the assessment having
been made, instead of preferring appeal, the petitioner has approached
this Court invoking the extra-ordinary jurisdiction of this Court under
Article 226 of the Constitution of India.
5. Mr. Sunil Mishra, learned counsel appearing for the CT & GST
vehemently contended that since the order impugned is appealable,
instead of approaching the appellate forum, the petitioner could not
have approached this Court. So far as merits of the writ petition is
concerned, it is contended that the petitioner is liable to pay the demand
raised by the authority. As such, by not paying the same the petitioner
has approached this Court by filing the present writ petition, which is
not maintainable. Consequentially, dismissal of the writ petition is
sought for.
6. Having heard learned counsel for the parties and after going
through the records, this Court finds that though there is availability of
alternative forum against the order passed by the assessing authority,
but the reason for directly approaching this Court is tell tale. More so,
making such assessment, the assessing authority has not issued any
notice of show cause to the petitioner. It is contended that as the supply
of goods were made on in-transit sale basis to the contractee by
bringing goods from outside the State in terms of Section 6 (2) of the
Central Sales Tax Act, 1956, entry tax could not have been levied as no
goods are brought into local area by this petitioner attracting liability
under the OET Act. As the assessment order was passed without
affording opportunity to explain the same, the petitioner has been
deprived of natural justice. As such, there is non-compliance of
principles of natural justice and, as a consequence thereof, the
petitioner has every right to invoke the extra-ordinary jurisdiction of
this Court under Article 226 of the Constitution of India. Apart from
the same, the factual matrix has been noted by the assessing officer to
the following effect:-
"Examination of the terms and conditions of the contract
mentioned above reveals that the dealer company in question has
executed a composite work involving Engineering, designing,
supply, manufacturer, errection, installation, testing &
commissioning of electrical equipments, substations, HT
Package, captive power plant, generation, etc. integration of the
system, demonstration, successful completion and establishment
of performance parameter of the facilities and taking over of
facilities by the contractees as per the requirement stipulated in
the contract. The price for most of the contract is lump sum,
having provision of the price adjustment. The risk and
responsibilities of plants, equipments and other facilities lied
with the contractor till commissioning, testing, establishment of
performance parameter and final acceptance by the ultimate
purchaser."
7. In view of the aforesaid factual matrix, it is made clear that since
it is a works contract, the assessing officer has committed gross error in
considering the contention that the work executed by the petitioner is a
composite work. Therefore, basing upon the same the assessment so
made by the assessing authority cannot sustain in the eye of law.
Thereby, this Court is of the considered view that the order dated
20.02.2015 so passed by the assessing authority cannot be sustained in
the eye of law and the same is liable to be quashed and is hereby
quashed. Accordingly, the matter is remitted back to the assessing
authority for being considered afresh by giving opportunity of hearing
to the petitioner and by issuing notice of show cause in compliance to
the principles of natural justice. Needless to say, since the assessment is
for the period from 2011-2013 and in the meantime more than 10 years
have passed and, as such, Mr. B. Mohanti, learned Senior Counsel
appearing for the petitioner undertakes that the petitioner will not ask
for any time, the assessing authority shall do well for early disposal of
the matter.
8. With the above observation and direction, the writ petition stands
disposed of.
(DR. B.R. SARANGI)
JUDGE
(M.S. RAMAN)
Ashok
JUDGE
