TMI Blog2017 (1) TMI 1347X X X X Extracts X X X X X X X X Extracts X X X X ..... , which has been filed by it after the first order of refund of amount has been passed, is not acceptable to this Court - application dismissed - decided against applicant. - O. J. C. Nos. 14041 & 14042 of 2001 - - - Dated:- 6-1-2017 - Kumari Justice Sanju Panda And Shri Justice Sujit Narayan Prasad, JJ. For the Petitioner : M/s. Jagabandhu Sahoo, S. K. Mohanty S.K.Burma For the Opp. Parties: Standing Counsel for Sales Tax Department ORDER S. N. Prasad, J. In both these writ applications, since common questions of law and fact are involved, they are heard together and are being disposed of by this common judgment. 2. In both the writ applications, the order passed under Section 12(a) of the Orissa Sales Tax Act, 1947 (in short, the Act ) has been challenged with a consequential direction upon the opposite parties to grant interest under Section 14-C of the Act as per the principles decided by this Court in OJC No. 4920 of 2000 vide order dated 14.9.2000 in case of M/s. Hemanta Kumar Chhatoi v. Asst. Commissioner of Sales Tax, on the basis of the petitioner s first application for grant of refund. 3. The brief fact of the case is that the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the true proceeds, which led the authorities for reassessment, hence, the petitioner cannot be awarded by making interest from the date of first application. He further submits that in view of the second proviso to Section 14, interest is not liable to be paid in case there is an order for reassessment. 5. Rebutting the argument regarding the statutory provision as contained in Section 14-C of the Act, learned Sr.counsel representing the petitioner has submitted that the said provision is not to disburse the amount of interest from the date of first application, rather the simple interpretation of the said statutory provision would be that when the assessment would be finally determined and came to a stop, then only it can be determined that excess payment has been paid by the assessee in course of assessment and it is only thereafter, if the authorities would come to a conclusion that there is excess payment of return, then the amount can be refunded and in that situation, the assessee would be entitled to get the interest if the amount will not be refunded within the period of ninety days and if refunded within the period of ninety days, the assessee will not be entitled to g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Section 12(8) contains a provision that if for any reason the turnover of a dealer for any period to which the Act applies has escaped assessment or has been under assessed or, where tax has been compounded when composition is not permissible under this Act and the rule made thereunder the Commissioner may at any time within 2(five years) from the expiry of the year to which that period relates call for return under sub-section (1) of section 11 and may proceed to assess the amount of tax due from the dealer in the manner laid down in sub-section (5). Section 14 contains a provision for return, which speaks that the Commissioner shall in the prescribed manner refund to a dealer applied in this behalf any amount of tax (penalty or interest) so paid by such dealer in excess of the amount due from him under the Act. Section 14-C stipulates payment of interest on refundable amounts, which reads follows: Amounts refundable under section 14, if not refunded within ninety days from the date of receipt of an application in that behalf from the date of receipt of an application in that behalf from the dealer shall carry interest at the rate of six per cent per annum, with ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g purchase suppression of beetle nuts by the applicant, hence, the Sales Tax Officer initiated proceeding under Section 12(8) of the Act, in response to which the appellant appeared before him, the Sales Tax Officer is found to have confronted the alleged report to the assessee, who denied the allegation, determined at the time of assessment under Section 12(4) resulting reduction of refund amount against which the assessee being aggrieved filed first appeal. The first appellate authority has passed order by which after finalizing the reassessment, the fact of suppression having been proved, the amount of refund has been reduced. The assessee has filed an application for getting refund and accordingly, the amount has been refunded in favour of the assessee. Hence, the assessee- petitioner herein is not pressing its grievance regarding refund of the excess amount paid by it in view of the assessment. But however, its grievance is for payment of interest in view of the provisions as contained in Section 14-C of the Act, which according to the assessee, it is entitled to get from the date of the assessment order, but the same has been denied by the authorities on the plea that the ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that there is suppression of material aspect, then within a period of five years from the date of submission of the return, it can be re-opened under the said provisions. Hence, the simple interpretation of the provision as contained in Section 12 if taken together along with all sub-sections is that the assessment for a particular period would be said to be concluded if there is no order for reassessment in exercise of the powers conferred under Section 12(8) of the Act. If that would be the situation and if it is found that the assessee have paid excess amount having been assessed in course of assessment and if not refunded in view of the provisions of Section 14 of the Act, then the assessee would be entitled to get interest if the amount would not be refunded within a period of ninety days and the interest will be payable after expiry of the period of ninety days inclusive of the period of ninety days. 13. The fact of the cases in hand is that the order of assessment initially has been accepted by the competent authority, but subsequently within the statutory period as provided under Section 12(8) of the Act, the order of reassessment has been directed to be conducted and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The petitioner has also relied upon the un-reported judgment passed by the Full Bench of this Court in the case of Ideal Industries Ltd. V. State of Orissa (supra), but the issue, which has been raised in the instant case, pertains to disbursement of the amount of interest as provided under Section 14-C and the Full Bench of this Court has agreed with the statutory provisions that the assessee is liable to be paid interest in view of the provisions of Section 14-C, but what would be the date for disbursement of the amount of interest in the factual aspect of these case was not the subject matter in the said judgment. Hence, it is not applicable with the issue involved in these cases. 15. Learned counsel representing the Revenue has relied upon the judgment rendered in the case of Dabur India Ltd. V. Sales Tax Officer passed in OJC No. 8920 of 1999 disposed of on 27.11.2015, but the factual aspect of the said case is also distinct since the order of reassessment was on the basis of suo motu revision by the Assistant Commissioner, but however, a coordinate Bench of this Court has directed to refund the amount from the date of the final assessment, i.e. after the assessment havi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, it is not a case herein that due to the power exercised by the appellate authority or the revisional authority in the suo motu revision, the order of reassessment has been made by appreciating the factual aspect of the assessee, but the fact here is that it is due to the misrepresentation and suppression of material fact in declaring the return, the order of reassessment has been passed under Section 12(8) of the Act and in course of the reassessment the fact of commission of suppression and misrepresentation has been proved. 19. The fact in the instant case is that the assessee has submitted its return, which was assessed, but subsequently it was found that there is some suppression in submission of return so far as it relates to gross turn-over of the assessee and as such, reassessment order has been directed to be initiated under the provisions of Section 12(8) of the Act. Thus, the assessee was conscious about the tax liability and intentionally he has not furnished proper return before the Assessing Officer and subsequently, it was found that the assessee has suppressed the material facts from the Assessing Officer in submission of return and accordingly, the amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
