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TMI Blog2016 (6) TMI 1062X X X X Extracts X X X X X X X X Extracts X X X X ..... ch transfer and consignment sale for an amount of Rs. 1608,86,12,150/- and effected sales to SEZ to the tune of Rs. 18,20,241/-. 3. It is further case of the petitioner that the Assistant Commissioner of Sales Tax, Sambalpur II Circle, Sambalpur being the Assessing Officer made assessment illegally by not awarding sufficient opportunity to the petitioner to produce balance declaration Form 'C' and 'F' to the tune of Rs. 4,69,57,870/- and Rs. 85,59,51,925/- respectively. Also the Assessing Officer did not allow time for producing certificate in Form-I in respect of sales made to SEZ. Accordingly, on 19.1.2013 the learned Assessing Officer made assessment order and directed to make demand of Rs. 3,74,26,551/- upon the petitioner to pay. 4. The petitioner filed appeal against the order of the Assessing Officer before the First Appellate Authority. After hearing the appeal the Deputy Commissioner of Sales Tax (Appeals) passed order by allowing the appeal in part and made the demand by reducing the same to Rs. 99,851/- to be paid by the petitioner. This order was passed on 10.11.2014. Against the order of the First Appellate Authority the Revenue filed Second Appeal before the Second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by the learned counsel for the petitioner that Section 57 of the OVAT Act clearly enshrines that refund of tax demand arising out of appellate order should be refunded within sixty days of receipt of the order. He also contended that not only the tax but also interest and penalty or both if paid by the dealer should be refunded to the assessee. According to him the opposite parties have erred in law by not following Section 57 of the OVAT Act. 9. Learned counsel for the petitioner further submitted that the provision of Section 60 (1) of the OVAT Act has not been followed by the opposite parties in this case and there is no finding in the notice issued by the opposite parties that the pre-conditions of Section 60 (1) of the OVAT Act have been complied resulting issuance of notice to withhold the refund. According to him mere filing of Second Appeal is not enough ground to withhold the demand of tax deposited by the petitioner. Mere sending notice is not enough to show the compliance of natural justice and the opposite parties have failed to observe to pass the speaking order before issuance of notice. So, he submitted issuance of notice is illegal, arbitrary for which the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T Act speaks as follows:- "57. Refund.- (1) Subject to other provisions of this Act and the rules, the assessing authority shall refund to a dealer, within a period of sixty days of the date of receipt of such order giving rise to such refund, the amount of tax, including interest or penalty or both, if any, paid by such dealer in excess of the amount due from him, through refund adjustment or through refund voucher: Provided that the assessing authority shall first adjust such excess amount towards the recovery of any amount due in respect of which a notice under sub-section (4) of Section 50 has been issued, or any amount due for any period covered by a return but not paid and, thereafter, refund only the balance, if any." The aforesaid provision clearly spells out that it is the duty of the Assessing Officer to make refund within a period of sixty days from the date of the order directing to refund the demand of tax including the interest and penalty or both after adjusting the demand of tax. In the present case admittedly he has deposited the entire demand and the First Appellate Authority vide Annexure-2 has directed that the demand is reduced to Rs. 99,851.00 and re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E COMMISSIONER OF COMMERCIAL TAXES, ODISHA, CUTTACK Letter No.15954/CT Dated 7.11.2015 E File No.II (II) 26/2015 To M/s. Hindalco Industries Ltd., Hirakud, Sambalpur, Tin-21601703134 Take notice that it is proposed to withhold sanction of refund u/s 60 (1) of the OVAT Act of Rs. 73,85,459.00 flowing from Appeal order No.AA-106/SAII/CST/12-13, Dated 10.11.2014 on the ground that the State has preferred second appeal against the appeal order passed by the DCST (Appeal), Sambalpur Range, Sambalpur giving rise to the refund under consideration. You are therefore, directed to appear before the undersigned on 27.11.2015 at 11.00 A.m. in his office chamber at Banijyakar Bhawan, Old Secretariat Compound, Cantonment Road, Cuttack and explain as to why the refund so granted by the 1st appellate authority will not be withheld as per provision of section 60 (1) of the OVAT Act. You may produce the documents and records on which you may rely in support of your arguments. In the event of failure on your part to appear in person or by your authorized representative, on the date specified in this notice, the matter will be decided on merit. Sd/- Commissioner of Sales ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions are in the field of private law and they are free to prescribe any conditions or limitations in their actions as private citizens, simplicitor, do in the field of private law. Its actions must be based on some rational and relevant principles. It must not be guided by irrational or irrelevant considerations. Every administrative decision must be hedged by reasons." 17. It is also reported in (1998) 8 Supreme Court Cases 194 (Basudeo Tiwary v. SIDO Kanhu University and others) where Their Lordships observed at para-10:- "10. In order to impose procedural safeguards, this Court has read the requirement of natural justice in many situations when the statute is silent on this point. The approach of this Court in this regard is that omission to impose the hearing requirement in the statute under which the impugned action is being taken does not exclude hearing - it may be implied from the nature of the power - particularly when the right of a party is affected adversely. The justification for reading such a requirement is that the Court merely supplies omission of the legislature (Mohinder Singh Gill v. Chief Election Commissioner: (1978) 1 SCC 405). From the aforesaid deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure-8. Since the notice dated 7.11.2015 has been issued and no order of withholding the refund has been passed, it is not justified to quash the notice. Since under Section 60 the opposite parties have got power to withhold the refund subject to the circumstances as enumerated therein and the Commissioner of Sales Tax has requested the petitioner to come up for hearing, it is too early to say that Section 60 of the Act has been complied. So, the reliefs claimed by the petitioner are premature for which it is for the petitioner to obtain opportunity of personal hearing and claim refund with interest from the opposite parties. The point No.(ii) is answered accordingly. CONCLUSION: 21. In view of the aforesaid analysis, we are of the considered view that Section 57 of the OVAT Act has been violated but the violation of Section 60 is yet to be found out. When there is notice to show cause issued to a proposal to withhold the refund but there is no order of withholding refund, the natural justice cannot be said to have been violated. We, therefore, in the fact and circumstances of the case direct the petitioner to attend the personal hearing before the learned Commissioner of Sales Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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