Orissa High Court
M/S. Hindustan Coca-Cola vs The Commissioner on 9 January, 2025
Author: Arindam Sinha
Bench: Arindam Sinha, M.S. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.32208 of 2024
M/s. Hindustan Coca-Cola .... Petitioner
Beverages Pvt. Ltd., BBSR
-versus-
The Commissioner, CT and GST, .... Opposite Parties
Odisha, Cuttack and others
Learned advocates appeared in the case:
For petitioner : Mrs. K.R. Choudhury, Advocate
For opposite parties : Mr. S. Mishra, Advocate
(Standing Counsel)
CORAM:
THE HON'BLE MR. JUSTICE ARINDAM SINHA
AND
THE HON'BLE MR. JUSTICE M.S. SAHOO
JUDGMENT
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Date of hearing and judgment: 9th January, 2025
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ARINDAM SINHA, J.
1. Mrs. Roy Choudhury, learned advocate appears on behalf of
petitioner and submits, impugned is, inter alia, intimation dated 30th
November, 2024 intimating that the Joint Commissioner of Sales Tax
(Appeal), in its appeal order no.3623 dated 21st October, 2023 had
dismissed the appeal. As such, petitioner then became liable to pay
tax and interest within 15 days of receipt, failing which recovery
proceeding will be initiated. She submits, mentioned appeal order was
never communicated to her client. She relies on rule 121 in Odisha
Value Added Tax Rules, 2005, reproduced below.
"121. Order of assessment, appeal or revision to be
communicated to the dealer.--
A copy of the order of assessment, appeal or revision
shall be supplied to the concerned dealer free of cost and
without application for the same."
She seeks interference.
2. Mr. Mishra, learned advocate, Standing Counsel appears on
behalf of revenue and draws attention to annexure-4 being order dated
21st October, 2024, referred in the intimation. He submits, the order is
one of rectification made to order dated 24th April, 2023. It having
been disclosed in the writ petition is demonstration that petitioner was
communicated the rectification order, subject matter of the intimation.
3. So far as appeal order dated 24th April, 2023 is concerned, Mr.
Mishra hands up copy of the order and attached thereto postal receipt
showing dispatch to petitioner on date appearing to be sometime in
July, 2023. Mr. Mishra attempts to give the date as in the postal stamp
to be 4th July, 2023. As such he submits, only discrepancy in the
intimation is reference to the rectification order as appeal order. It is
not a discrepancy inasmuch as the appeal order merges in the
rectification order, to become the appeal order.
4. Mrs. Roy Choudhury in reply points out, impugned intimation
talks about appeal order dated 21st October, 2023. It was not served
on her client. The rectification order is dated 21st October, 2024.
5. In trying to sort-out the confusion created we see that mention
of appeal order gives no.3623 and date 21st October, 2023. It carries
error inasmuch as the rectification of appeal order is order no.3623
dated 21st October, 2024. The order reference has been correctly
stated in the intimation but the date carries a mistake. Revenue
committed error, albeit typographical error in printing date of the
order mentioned in impugned intimation. Petitioner's contention is
that the order mentioned in impugned intimation was not served. It
could not have been as the particulars of the order themselves carry an
error. However, we are convinced that petitioner was aware all along.
6. At this stage Mrs. Roy Choudhury submits, by the
rectification there was enhancement without giving opportunity of
hearing. Mr. Mishra submits, by the rectification there has been
reduction in tax and increase in interest, but the aggregate demand
remained the same.
7. Proviso in sub-section(1) of section 81 says that an
amendment, which has effect of enhancing an assessment or
otherwise increase liability of the assessee shall not be made unless
the authority has given notice to the assessee of its intention to do so
and has allowed the assessee a reasonable opportunity of being heard.
Going by submission made on behalf of revenue, if there has been
increase in the amount of interest by the rectification, petitioner was
entitled to a notice for being heard. The concept of aggregate demand
remaining same is not supported by the provision.
8. Impugned rectification order and the intimation are set aside
and quashed. Petitioner will forthwith communicate certified copy of
this order to the authority within 24th January, 2025 and obtain date of
hearing, for purpose of rectification. In event of omission to
communicate as directed, impugned order and intimation will
automatically stand restored.
9. The writ petition is disposed of.
1.
( Arindam Sinha )
Judge
Signed by: PRASANT KUMAR SAHOO ( M.S. Sahoo )
Designation: PERSONAL ASSISTANT
Reason: Authentication
Location: Orissa High Court Judge
Date:Prasant
09-Jan-2025 18:13:14
