[Cites 3, Cited by 0]
Orissa High Court
M/S. Ghanshyam Misra And Sons (P) vs Commissioner Of Commercial Taxes on 26 March, 2026
Author: Murahari Sri Raman
Bench: Murahari Sri Raman
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) No.7264 of 2026
M/s. Ghanshyam Misra and Sons (P) ... Petitioner
Ltd.
Mr. Jagabandhu Sahoo, Senior Advocate
assisted by Ms. Kajal Sahoo, Advocate
-Versus-
Commissioner of Commercial Taxes, ... Opposite Parties
Odisha and another
Mr. Sunil Mishra, Standing Counsel
for CT & GST Department
CORAM:
THE HON'BLE THE CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE MURAHARI SRI RAMAN
ORDER
Order No. 26.03.2026
03. I.A. No.5598 of 2026
1. This Interlocutory Application has been filed after disposal of the
writ petition bearing W.P.(C) No.7264 of 2026 vide order dated
16th March, 2026 with the following prayer(s):
"Under the aforesaid circumstances, it is prayed therefore that this
Hon'ble Court may be graciously pleased to pass appropriate order
suitably modifying/clarifying/rectifying the order dated 16.03.2026
passed by this Hon'ble Court in the end of justice;
And for this act of kindness, the petitioner shall as in duty bound ever
pray."
2. The writ petition was filed challenging the order dated 16th
February, 2026 passed by the Commissioner of Sales Tax,
Odisha, rejecting the petition for stay the recovery of demand
raised in the assessment framed under Section 9C of the Odisha
Entry Tax Act, 1999 as confirmed by the Additional
Commissioner of Sales Tax (Appeal), Balasore vide order dated
28th March, 2025 during the pendency of the second appeal
against the said appellate order before the Odisha Sales Tax
Tribunal.
3. This Court vide order dated 16th March, 2026 disposed of the said
writ petition with the following observation (s):
"7. The assessment order and also the first appeal order
reveals that though sufficient adjournments were granted
by the authorities concerned in order to extend
opportunities to furnish documents/evidence in support of
the claim of the petitioner, he failed to produce such
requisite documents for the purpose of verification or
examination of veracity of such claims made. The
Appellate Authority lucidly stated that the dealer did not
produce any supporting document neither before the audit
team nor before the Appellate Authority. Such being the
position, this Court does not find any plausible
explanation offered by the petitioner nor before the
Commissioner nor this Court. Except saying that the
Commissioner of Sales Tax on appreciating pre-deposit
made by different dealers as per sub-section (4) of
Section 16 during the pendency of the first appeal
granted stay of realization of balance demanded tax,
nothing is argued as to why the petitioner-dealer
defaulted in producing relevant material before the audit
team, the assessing authority and the appellate authority.
This Court is conscious of the fact that the interim orders
passed during pendency of second appeal are not
binding. Sub-section (7) of Section 17 of the OET Act vests
discretion in the Commissioner of Sales Tax to stay the
realization of outstanding demanded tax as a result of
disposal of appeal under Section 16(7) before the learned
Odisha Sales Tax Tribunal. Having noticed that the dealer
failed produce material evidence before the audit team, the
assessing authority as also the appellate authority, the
Commissioner of Sales Tax declined to grant stay
realization of the balance demanded tax.
8. Be that as it may, taking into consideration the submission
of the learned Senior Advocate that the petitioner has
deposited 20% of the tax demanded by virtue of the
assessment order framed under Section 9C of the OET Act
during the pendency of the first appeal in terms of sub-
section (4) of Section 16 of the OET Act, in order to
maintain the balance of convenience this Court directs the
petitioner to deposit 30% of the balance tax as demanded
in the assessment on or before 31st March, 2026. In the
event of such deposit being made within the period
stipulated, no coercive measure shall be taken against the
petitioner for recovery of rest of the demand raised in the
assessment order dated 21st November, 2015 with respect
to the tax periods from 01.07.2012 to 31.03.2014 during
the pendency of the second appeal before the learned
Odisha Sales Tax Tribunal. It is made clear that if the
petitioner fails to comply with the aforesaid direction, the
authority concerned is at liberty to carry out the direction
of the Commissioner of Sales Tax vide order dated 13th
February, 2026. Needless to observe that the hearing of
second appeal shall be expedited."
4. Learned Senior Advocate appearing for the petitioner would
submit that perverse finding of the fact recorded by the appellate
authority having been relied by this Court while disposing of said
writ petition, order dated 16th March, 2026 requires modification.
4.1. He referred to paragraph-6 of the Interlocutory Application,
which reads as under:
"6. It is further submitted that there was no laches on the part
of the petitioner in complying with every notice during the
process of adjudication. Furthermore, it is humbly
submitted that the findings of the learned Additional
Commissioner (Appeal), Balasore, contain inherent
contradictions where the final observation stand in direct
conflict with the facts recorded by the same authority. It
is submitted that such a patent inconsistency in the
underlying record strikes at the root of the matter and the
erroneous and contradicting observation made by the
Additional Commissioner (Appeal) ought not to have been
considered by this Hon'ble Court while passing the order
dated 16.03.2026."
4.2. As if the order passed in the writ petition, which was filed
challenging the interlocutory order passed by the Commissioner
of Sales Tax rejecting the prayer to grant stay of realization of
demand during the pendency of the second appeal before the
learned Sales Tax Tribunal, may have influence on merit of the
second appeal pending before the Odisha Sales Tax Tribunal, this
Interlocutory Application has been taken out seeking
modification/clarification.
5. Sri Sunil Mishra, learned Standing Counsel opposing
maintainability of such interlocutory application after disposal of
writ petition, urged that granting full stay or conditional order is
the discretion of the authority or the Court. This Court having
considered the facts as settled by the Appellate Authority
directed to deposit certain percentage of demanded tax as a
condition for restraining the authority from realizing full
demanded tax during pendency of second appeal. Since the fact
returned by the Appellate Authority has not yet been varied by
the learned Sales Tax Tribunal it could not be said that any
observation made by this Court in the interim can have any
repercussion on the merit of the second appeal.
6. Heard learned Senior Advocate appearing for the petitioner and
learned Standing Counsel appearing for the CT & GST
Department.
7. This Court finds the apprehension of the learned Senior
Advocate appearing for the petitioner is without comprehension.
At paragraph-7 of the order dated 16th March, 2026 this Court
unequivocally made observation that "this Court is conscious of
the fact that the interim orders passed during pendency of second
appeal are not binding."
7.1. It is trite that any observation made in order to consider
whether the petitioner is entitled to grant of stay of
realization of demanded tax during the pendency of second
appeal is interlocutory in nature. Such observation was
necessary for weighing the balance of convenience and such
tentative observation is made in order to appreciate prima
facie case.
7.2. The learned Senior Advocate appearing for the petitioner
confronted this Court with an observation made in the appellate
order that in fact the Advocate for the petitioner appeared before
the Appellate Authority on 20th February, 2025 but the Appellate
Authority under a mistaken notion while passing the final order
dated 16th February, 2026 observed as if "the dealer-appellant
also fail to appear before this forum to defend their case."
7.3. Be that as it may, the finding of fact/observation made, if any, by
the Appellate Authority is subject matter of dispute for
adjudication before the learned Odisha Sales Tax Tribunal in
second appeal. The observations made by this Court in the order
dated 16th March, 2026 was based on such findings returned by
the appellate authority, which has not yet been varied/interfered
with by any competent Court or authority established under the
law.
7.4. Without delving deep into any controversial factual aspect, this
Court feels it apposite to observe that the Hon'ble Supreme Court
of India on many occasions deprecated the practice of filing
petition for clarification/modification after final disposal of the
main petition in the garb of review. Suffice it to refer State of
Haryana Vrs. M.P. Mohla, (2006) Supp.8 SCR 926, wherein it
has been expounded that "an application for clarification cannot
be taken recourse to, to achieve the result of a review
application. What cannot be done directly, cannot be done
indirectly [Ram Chandra Singh Vrs. Savitri Devi and others,
(2004) 12 SCC 713]."
7.5. It may not be out of place to quote here from Ajay Kumar Jain
vs. State of Uttar Pradesh and another, (2024) 12 SCR 478:
"11. This Miscellaneous Application on the face of it is not
maintainable in law.
12. It is high time that this Court says something on the
practice of the litigants filing miscellaneous applications
in disposed of proceedings and that too after a period of 5
years, 7 years, 10 years.
13. These miscellaneous applications which are being filed on
daily basis have something to do with fresh cause of action
that might have arisen with a very remote connection with
the main proceedings.
14. No miscellaneous application is maintainable in a writ
petition to revive proceedings in respect of subsequent
events.
15. In fact, the Court has no jurisdiction to entertain such
application as no proceedings could be said to be pending
before it. When proceedings stand terminated by final
disposal of the writ petition be it under Article 32 of the
Constitution or Article 226 of the Constitution before the
High Court, it is not open to the Court to re-open the
proceedings by means of a miscellaneous application in
respect of a matter which provided a fresh cause of
action. If this principle is not followed, there would be
confusion and chaos and the finality of the proceedings
would cease to have any meaning.
16. In the recent past, a co-ordinate bench of this Court
observed the following in "Jaipur Vidyut Vitran Nigam
Ltd. and Others Vrs. Adani Power Rajasthan Ltd. and
Another reported in 2024 SCC OnLine SC 313":
"We felt it necessary to examine the question about
maintainability of the present application as we are of the
view that it was necessary to spell out the position of law
as to when such post-disposal miscellaneous applications
can be entertained after a matter is disposed of. This
Court has become functus officio and does not retain
jurisdiction to entertain an application after the appeal
was disposed of by the judgment of a three-Judge Bench
of this Court on 31.08.2020 through a course beyond that
specified in the statute. This is not an application for
correcting any clerical or arithmetical error. Neither it is
an application for extension of time. A post disposal
application for modification and clarification of the order
of disposal shall lie only in rare cases, where the order
passed by this Court is executory in nature and the
directions of the Court may become impossible to be
implemented because of subsequent events or
developments. The factual background of this Application
does not fit into that description."
17. Thus, this Court made it abundantly clear that a
miscellaneous application filed in a disposed of
proceedings would be maintainable only for the purpose of
correcting any clerical or arithmetical error. The Court
further clarified that a post disposal application for
modification Thus, this Court made it abundantly clear
that a miscellaneous application filed in a disposed of
proceedings would be maintainable only for the purpose of
correcting any clerical or arithmetical error. The Court
further clarified that a post disposal application for
modification or clarification of the order would lie only in
rare cases where the order passed by this Court is
executory in nature and the directions of the Court may
have become impossible to be implemented because of
subsequent events or developments..
18. The Registry shall not circulate any miscellaneous
application filed in a disposed of proceedings unless and
until there is a specific averment on oath that the filing of
the miscellaneous application has been necessitated as the
order passed in the main proceedings being executory in
nature and have become impossible to be implemented
because of subsequent events or developments.
19. The Registry shall insist from every applicant who intends
to file any miscellaneous application in a disposed of
proceedings for such a declaration as above on solemn
affirmation."
7.6. The interlocutory application which is pressed by the learned
Senior Advocate for the petitioner apparently beseeches revisit of
the final order passed in the writ petition. This Court is functus
officio to deal with such interlocutory application seeking
modification in the garb of review. Doing so by allowing the
application would be to change the final result of the order dated
16.03.2026 passed in the writ petition. Such a recourse is
impermissible in law and such practice is deprecated by the
Hon'ble Supreme Court of India on very many occasions.
8. In view of the aforesaid clear enunciation of legal position by the
Hon'ble Supreme Court of India, there is no ambiguity in mind
that the nature of averments and prayer(s) made in the
Interlocutory Application after disposal of writ petition is not
maintainable. It appears that in order to seek review of order
dated 16th March, 2026 passed in WP(C) No.7264 of 2026, this
Interlocutory Application has been filed with the title "an
application for modification/rectification on of order dated
16.03.2026 passed by this Hon'ble Court in WP(C) No.7264 of
2026". This Court does not find any error apparent on the face of
the record. Hence the Interlocutory Application, being not
maintainable, is hereby dismissed.
9. With the aforesaid observation and direction, the Interlocutory
Application stands disposed of.
(Harish Tandon)
Chief Justice
(M.S. Raman)
Judge
MRS/Laxmikant
Signed by: LAXMIKANT MOHAPATRA
Designation: SENIOR STENOGRAPHER
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 30-Mar-2026 19:28:55
