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Orissa Road Transport Company Ltd. Vs. the Sales Tax Officer - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 222 of 1983
Judge
Reported in[1983]54STC22(Orissa)
AppellantOrissa Road Transport Company Ltd.
RespondentThe Sales Tax Officer
Appellant AdvocateA. Pasayat, Adv.
Respondent AdvocateR.K. Patra, Additional Government Adv.
DispositionApplication allowed
Cases ReferredOrient Paper and Industries Ltd. v. Sales Tax Officer
Excerpt:
.....his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - 3. the opposite party levied sales tax on the petitioner on the disposal value of unserviceable old parts, scrap materials, condemned vehicles and obsolete stocks......i circle, berhampur, rejecting an application for refund of sales tax under section 14 of the orissa sales tax act, 1947.2. the petitioner is a government of orissa undertaking having its registered office at berhampur in the district of ganjam and is a public limited company engaged in transport business.3. the opposite party levied sales tax on the petitioner on the disposal value of unserviceable old parts, scrap materials, condemned vehicles and obsolete stocks. the following demands were raised against the petitioner for the assessment years quoted against each :assessment year tax penalty total1972-73 3,085 1,000 4,0851973-74 19,727 12,000 33,727 (sic)1974-75 24,190 12,000 36,1901975-76 13,466 7,000 20,466---------99,468 (sic)---------the petitioner preferred appeals before.....
Judgment:

P.K. Mohanti, Ag. C.J.

1. Challenge in this writ application is to an order of the Sales Tax Officer, Ganjam I Circle, Berhampur, rejecting an application for refund of sales tax under Section 14 of the Orissa Sales Tax Act, 1947.

2. The petitioner is a Government of Orissa undertaking having its registered office at Berhampur in the district of Ganjam and is a public limited company engaged in transport business.

3. The opposite party levied sales tax on the petitioner on the disposal value of unserviceable old parts, scrap materials, condemned vehicles and obsolete stocks. The following demands were raised against the petitioner for the assessment years quoted against each :

Assessment year Tax Penalty Total1972-73 3,085 1,000 4,0851973-74 19,727 12,000 33,727 (sic)1974-75 24,190 12,000 36,1901975-76 13,466 7,000 20,466---------99,468 (sic)---------

The petitioner preferred appeals before the Assistant Commissioner of Sales Tax, Berhampur Range, Ganjam and by order dated 15th March, 1979, the assessment was confirmed and the appeals were dismissed. The matter was carried in second appeals before the Sales Tax Tribunal, Orissa. By order dated 15th November, 1979, the Additional Sales Tax Tribunal, Orissa, allowed the appeals, set aside the assessments and remanded the cases to the assessing officer for fresh assessment after further enquiry in accordance with law. Pending disposal of the appeals, the petitioner had paid a total sum of Rs. 60,467.36 as detailed below :

Assessment year Tax paid1972-73 ... 3,084.361973-74 ... 19,727.001974-75 ... 24,190.001975-76 ... 13,466.00------------60,467.36------------

4. On 20th March, 1980, the petitioner filed applications for refund of tax under Section 14 of the Orissa Sales Tax Act before the Commissioner of Sales Tax, Orissa. By order dated 21st August, 1982, the applications were rejected by the opposite party and the following order was communicated to the petitioner :

As the State preferred appeal before the Honourable Supreme Court of India against the decision of the Honourable High Court, Orissa, in S.J.C. Nos. 90, 175, 194 and 196 of 1977 Since Reported as State of Orissa v. Orissa Road Transport Company Ltd. [1983] 53 STC 329, the refund applications as mentioned above are hereby rejected.(vide annexure-6)

5. The petitioner's contention is that once the assessments are set aside, the demands are wiped out and until a fresh demand is raised by reassessment, the sales tax authorities are not entitled to withhold the amount paid by the assessee.

6. Mr. R. K. Patra, the learned Additional Government Advocate, admitted that S. J. C. Nos. 90, 175, 194 and 196 of 1977 referred to in the impugned Order (annexure-6) do not relate to the assessment order in question and that they relate to earlier years. He also admitted that no appeal has been preferred to the Supreme Court against the order dated 15th November, 1979, passed by the Additional Sales Tax Tribunal, Orissa, allowing the appeals and remanding the cases for fresh assessment. He, however, contended that the refund of tax becomes due only when the assessment is annulled and not when it is merely set aside and the case is remanded for fresh assessment.

7. The present case is directly covered by a Bench decision of this Court in the case of Orient Paper and Industries Ltd. v. Sales Tax Officer, Sambalpur III Circle, Jharsuguda [1982] 50 STC 211. In that case, after the assessments were set aside and the cases were remanded to the Sales Tax Officer for fresh assessment, an application for refund of the tax paid was filed before the Sales Tax Officer who informed the petitioner to the following effect:

With reference to the refund applications submitted by you relating to the above periods, I am to inform you that the assessments have been set aside and remanded for reassessment by the Additional Member, Sales Tax Tribunal, Orissa, Cuttack. The refund is, therefore, due only after reassessments as directed by the second appellate authority are completed. Submission of refund applications relating to the periods stated above is premature and therefore the refund applications are filed.

Aggrieved by this order, the assessee filed an application under Article 226 of the Constitution for quashing the order of rejection and for a direction that the application for refund be granted. This Court held as follows :.As we have already pointed out, but for the demand raised under assessment, nothing was due from the petitioners under the Act. The amount claimed by way of refund is relatable to the demand raised pursuant to assessments which, as already pointed out, have been wiped out as a result of the decision by the second Appellate Tribunal. At present at the most the petitioners had the liability to be reassessed. That liability is a contingent one. It may be, when reassessment is completed, some demand may be raised. It is also possible, as has been contended by Dr. Pal for the petitioners, that the reassessment may not result in any demand. When the matter stands in such a position, can it be said that the amount, refund of which is claimed, is due from the petitioners under the Act If the money is not due from it, certainly the right to claim refund under the parent provision of Section 14 arises.

8. In view of the principles laid down in the above decision, the contention raised on behalf of the opposite party is untenable. The petitioner is entitled to get refund of the tax paid.

9. The writ application is allowed; but in the circumstances without any order as to costs.

10. The order of rejection of the refund applications as per annexure-6 is quashed. Issue writ of mandamus commanding the Sales Tax Officer to refund the amount of tax paid against the assessments, which have been set aside, in accordance with law to the petitioner.

B.K. Behera, J.

11. I agree.


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