JUSTICE M.S. RAMAN

M/s. Sumanshree Decoratives v. Commissioner of Sales Tax and Ors.

Case Number: W.P.(C) No. 2429 of 2022

Date of Decision: 4th April, 2022

In this case, the Petitioner had challenged the order dated 17.02.2021 passed by the Commissioner of Sales Tax, Odisha in Revision Case Nos. KAL- 109/V/2019-20 and KAL-110/E/2019-20 exercising powers under Section 79(2) of the Odisha Value Added Tax Act, 2004 and Section 18(3) of the Odisha Entry Tax Act, 1999, whereby the orders dated 30.04.2019 of the Joint Commissioner Sales Tax, Balangir Range, Balangir, rejecting summarily the appeals being AA-16 (KA) of 2018- 18 (VAT) and AA-19 (KA) of 2018-19 (Entry Tax), at the behest of the petitionerassessee had been upheld. According to the Petitioner, assessments under Section 43 of the OVAT Act and Section 10 of the OET Act were undertaken pursuant to report submitted by the Deputy Commissioner of Sales Tax, Vigilance, Koraput Division, Jeypore and without affording due and reasonable opportunity to the petitioner the opposite party No.2 raised huge demands.

The Petitioner argued that neither the appellate authority nor the revisional authority considered the material placed on record. The authorities-opposite parties ought not to have rejected the merits of the appeal at the altar of defect or deficiency as the financial situation of the business should have been taken into consideration.

On the other hand, the Opposite Party contended that the provisions of law relating to deposit of tax in dispute for entertainment of appeals do not envisage making out a prima facie case for waiver of pre-deposit. Section 77(4) of the OVAT Act and Section 16(4) of the OET Act no way envisaged making out a prima facie case for waiver of pre-deposit. Further, opposite parties-authorities are justified in not taking the plea of financial hardship. Therefore, the orders of summary rejection of the appeals as upheld by the revisional authority do not warrant intervention.

The Court observed that confirmed the orders rejecting the appeals summarily as affirmed by the Commissioner of Sales Tax- revisional authority in exercise of power under Section 79(2) of the OVAT Act and Section 18(3) of the OET Act. The Court remarked- “in the teeth of authoritative exposition of law with regard to scope of waiver of condition of pre-deposit for entertainment of appeal in absence of statutory provision, this Court is not persuaded to relax such a condition.” The writ petition was accordingly, disposed of.

Stewart Science College and Anr. v. Income Tax Officer

Case Number: WP(C) No. 17176 of 2022

Coram: Justice Jaswant Singh and Justice M.S. Raman

Date of Judgement: 27th September, 2022

In this case, the Petitioner No.1, Stewart Science College (petitioner-College), had challenged the Notice dated 22nd March, 2022 issued under Section 148A(b), the Order passed under Section 148(A)(d) along with Notice dated 31st March, 2022 issued under Section 148 indicating initiation of proceeding for assessment of escaped income under the Income-tax Act, 1961.

The Petitioners submitted that the assessee-College does fall within the meaning of expression “wholly or substantially financed by the Government” as employed in sub-clause (iiiab) of clause (23C) of Section 10 of the IT Act, it was not required to furnish return in view of provisions contained in Section 139(4C)(e). They further contended that the Assessing Authority has misconstrued that there has been escapement of income for the Assessment Year 2015-16. In such view of the matter, not only the notice dated 31st March 2022 issued under Section 148 is tainted, but also the Order dated 22nd March 2022 passed under Section 148A is vitiated.

The Respondent contended that the writ petition is premature inasmuch as the Petitionerassessee has ample opportunity to place its material before the Assessing Authority on merit as also raise objection against the Order dated 31st March, 2022 passed under Section 148A(d) during the course of the assessment proceeding. Therefore, it was submitted that there being no prejudice caused to the petitioner, interference at this juncture by this Court under Article 226 of the Constitution of India would not be warranted.

The Court observed that the Supreme Court of India in South India Tanners & Dealers Association v. Deputy Commissioner of Commercial Taxes ((2008) 23 VST 8 (SC)) expressed displeasure in entertainment of writ petition against the Show Cause Notice. It was further observed in such circumstances the Special Tribunal/High Court should not have interfered and they should direct the assesse to reply to the show cause notice and exhaust the statutory remedy. The writ petition was hereby rejected.