M/S. Mahavir Associates vs State Of Odisha Represented By The
2023 Latest Caselaw 600 Ori

                     IN THE HIGH COURT OF ORISSA AT CUTTACK

                                       STREV No.7 of 2021

            M/s. Mahavir Associates, Cuttack             ....           Petitioner
                                      Mr. Tushar Kanti Satapathy, Advocate
                                        -versus-
            State of Odisha represented by the       ....     Opposite Party
            Commissioner of Sales Tax, Cuttack
                         Mr. Sunil Mishra, ASC for the Revenue Department

                          CORAM:
                          THE CHIEF JUSTICE
                          JUSTICE M.S. RAMAN

                                           ORDER

18.01.2023 Order No. I.A. No.18 of 2021

02. 1. For the reasons stated therein, the application is allowed. Filing of certified copies of Annexures-2 and 3 is dispensed with for the time being.

STREV No.7 of 2021

2. Admit.

3. The following questions are framed for consideration by this Court:

"A. Whether on the facts and circumstances of the case, the learned Tribunal is legally justified to hold that the assessing officer is correct to proceed assessment u/s 43 of the OVAT Act without any assessment u/s 39 of the OVAT Act for the period of 01.04.2013 to 31.03.2017?

B. Whether on the facts and circumstances of the case, the learned Tribunal is legally justified not to decide the issue whether royalty is a tax paid to the auctioneer or unregistered dealer on purchase of sand by the petitioner and the same is to be adjusted towards the purchase tax payable as per the section 12 of the OVAT Act?"

4. As far as question-A is concerned, in view of the judgment of this Court dated 1st December, 2021 in STREV No.64 of 2016 (M/s. Keshab Automobiles v. State of Odisha), as been affirmed by the Supreme Court of India in its order dated 13th July, 2022 in SLP (Civil) No.9912 of 2022 (Deputy Commissioner of Sales Tax v. Rathi Steel and Power Ltd., the impugned assessment so far as it concerns the period up to 30th September, 2015 is also hereby set aside. The impugned assessment order and the corresponding orders of First Appellate Authority and Tribunal are, accordingly, set aside. Question-A is accordingly answered. The matter is remanded to the Assessing Authority, Cuttack-II Circle, Cuttack to rework the demand on the above basis and, after hearing the Petitioner, pass an appropriate order not later than 1st March, 2023. For the said purpose, the matter will be listed before the Assessing Authority, Cuttack-II Circle, Cuttack on 31st January, 2023. If aggrieved by the revised demand, it obviously be opened to the Petitioner to seek appropriate remedies in accordance with law.

5. As far as Question-B is concerned, the issue is stated to be pending in the Supreme Court of India. Permitting the parties to mention it for listing after disposal of the case in the Supreme Court, the present petition is adjourned sine die.

(Dr. S. Muralidhar) Chief Justice

(M.S. Raman) Judge M. Panda