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Superintending Engineer, Operation, Electricity Department and anr. Vs. State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtOrissa High Court
Decided On
Case NumberO.J.C. Nos. 78 to 84 of 1972
Judge
Reported in[1976]38STC69(Orissa)
AppellantSuperintending Engineer, Operation, Electricity Department and anr.
RespondentState of Orissa and ors.
Appellant AdvocateN.V. Ramdas, Adv.
Respondent AdvocateThe Standing Counsel (C.T.)
DispositionApplication dismissed
Cases ReferredState of Madras v. Gannon Dunkerley
Excerpt:
.....that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of..........at machkund in the district of koraput within the state of orissa, a joint venture between the state of madras and the state of orissa was undertaken. with the formation of the state of andhra pradesh, the said state replaced the state of madras in the joint venture. m/s. john mowlem and co., originally im-pleaded as opposite party no. 5 and transposed as petitioner no. 2, undertook certain contracts under this project. the said contract came to be assessed under section 12(5) of the orissa sales tax act (hereinafter referred to as the act) for the quarters ending 30th june, 1950, to 31st december, 1951, and a total liability of rs. 1,06,419 was created by way of tax and penalty. the contractor challenged its liability on the ground that it was not a dealer and the transactions were.....
Judgment:

R.N. Misra, J.

1. These are seven applications for writs of certiorari directed against the rejection of applications for refund of sales tax passed by the Sales Tax Officer and upheld in revision by the Commissioner of Sales Tax. For the construction of the Hydro Electric Project at Machkund in the district of Koraput within the State of Orissa, a joint venture between the State of Madras and the State of Orissa was undertaken. With the formation of the State of Andhra Pradesh, the said State replaced the State of Madras in the joint venture. M/s. John Mowlem and Co., originally im-pleaded as opposite party No. 5 and transposed as petitioner No. 2, undertook certain contracts under this project. The said contract came to be assessed under Section 12(5) of the Orissa Sales Tax Act (hereinafter referred to as the Act) for the quarters ending 30th June, 1950, to 31st December, 1951, and a total liability of Rs. 1,06,419 was created by way of tax and penalty. The contractor challenged its liability on the ground that it was not a dealer and the transactions were not exigible to sales tax. A reference was made to this court at the assessee's instance being S.J.C. No. 2 of 1955. On 29th September, 1958, this court decided that sales tax was not leviable in respect of the contract work entered into by the contractor with the Madras Government and answered the reference made by the then Board of Revenue accordingly. The contractor, petitioner No. 2, claims that refund was asked for by making an application in form No. 12 on 22nd June, 1959. Subsequently on 3rd December, 1959, the Superintending Engineer, petitioner No. 1, made similar applications for refund under Section 14-A of the Act. Those applications were rejected as barred by limitation and when a revision application was filed before the Commissioner of Commercial Taxes and it was contended that an earlier application within the period of limitation had been filed by the contractor, it was said that no such application was forthcoming from the record. It is against this rejection order as upheld by the Commissioner that these several writ applications have been filed -- one in respect of each of the quarters concerned.

2. Mr. Ramdas for the petitioners raised several contentions, one of which would be enough for disposal of these writ applications. As already stated, upon the reference made by the Board of Revenue to this court regarding exigibility of sales tax on the transactions, on 29th September, 1958, this court came to hold :

Mr. G.K. Misra, on behalf of the sales tax department, fairly concedes that in view of the recent decision of the Supreme Court reported in State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd [1958] 9 S.T.C. 353 (S.C.), sales tax is not leviable in respect of the contract entered into by the petitioners with the Madras Government in connection with Machkund Hydro Electricity Dam Scheme. Hence, question No. 1 in the reference made by the Member, Board of Revenue, is answered in the affirmative. In view of the aforesaid answer to question No. 1, it is unnecessary to answer question No. 2.

3. Long before the disposal of the reference application, referred to above, the Orissa Sales Tax Act had undergone amendments and Section 24 dealing with reference applications had in Sub-section (5) made the following provision:

The High Court upon the hearing of any such case, shall decide the question of law raised thereby, and shall deliver its judgment thereon containing the grounds on which such decision is founded, and shall send to the Tribunal a copy of such judgment under the seal of the court and the signature of the Registrar, and the Tribunal shall dispose of the case accordingly.

4. Even before the amendment the scheme in Section 24 was similar. The advisory opinion given by this court does not dispose of the appeal finally. Under Section 24(5) of the Act, a final order has to be passed by the Tribunal. The contention of Mr. Ramdas that after the decision of this court in the reference application a final order within the ambit of Section 24(5) of the Act has not been passed is not challenged by the opposite parties. It would, therefore, follow that the application made for refund is premature. It is for the Tribunal to pass a final order in terms of Section 24(5) of the Act and, when such an order is passed, if refund is admissible on the basis of such order, it would be open to the assessee or petitioner No. 1 (in case he satisfies the appropriate authority that he is entitled to the amount) to claim refund in accordance with law. It would obviously follow that any view expressed on the premature applications would in law be non est and the applications, if any, to be made by the petitioners or any of them in future have to be disposed of on their own merit without being in any manner prejudiced by the view already expressed. These writ applications have, therefore, to fail. It is for the petitioners now to move the Tribunal to pass the appropriate order and, thereafter, in case refund becomes admissible, to lay claim for refund in accordance with law. There would be no order as to costs.

Panda, J.

5. I agree.


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