TMI Blog2018 (3) TMI 1534X X X X Extracts X X X X X X X X Extracts X X X X ..... ssess the assesse and complete the reassessment, preferably, within a period of eight weeks from today - Application disposed off. - W.P.(C) No.10715 of 2014 - - - Dated:- 20-2-2018 - SHRI I. MAHANTY AND SHRI BISWAJIT MOHANTY JJ. For Petitioner: M/s. Prakash Kumar Jena, S.P. Dalei, S.C. Sahoo, L.N. Sahoo A.R. Mishra For Opp. Parties: Mr. Debadutta Beura Standing Counsel (Sales Tax Department) P R E S E N T: Biswajit Mohanty, J. An assessee has filed this writ application with prayers to quash the assessment order dated 19.3.2014 (Annexure-1) passed under Section 43 of the Odisha Value Added Tax Act, 2004 and the demand notice under Annexure-2 both passed by the Deputy Commissioner of Sales Tax, (Opposite Party No.1). The assessee has also prayed for a direction to the Assessing Officer to re- compute / reassess the turnover and tax after accepting the revised returns and allowing the petitioner all his rights to file returns revising the turnover as permitted under law. In the alternative, it has prayed for a direction to waive the precondition of payment of 20% of the disputed tax and interest in the event a direction is given for filing of the appeal under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eon. Further, according to the petitioner the opposite parties conducted the tax audit under Section 41 of the OVAT Act for the period 1.4.2007 to 31.10.2012. In its Audit Visit Report under Annexure-4, the method of fixing the sale price and the rate cutting have been reflected. According to the petitioner on the basis of the above noted Audit Visit Report, audit assessment was completed under Section 42 of the OVAT Act for the period 1.4.2007 to 30.11.2012 and accordingly, the assessment order under Annexure-5 was issued on 18.5.2013. Subsequently, in the very next month the opposite party no.1 vide letter no.5476/CT dated 6.6.2013 informed the Joint Commissioner of Commercial Taxes, Bhubaneswar Range, Bhubaneswar that discrepancies have been detected in the VAT return filed for the period 1.4.2013 to 30.4.2013 by the petitioner, which necessitated further investigation. Accordingly, the opposite party no.1 informed the Joint Commissioner of Commercial Taxes that the matter has been discussed with DCCT Enforcement, Bhubaneswar for detailed enquiry and for submission of enquiry report. Accordingly, the report dated 29.6.2013 under Annexure-6 was prepared, which fallaciously sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned assessment order under Annexure-1 has been issued in violation of the principles of natural justice, the same is liable to be quashed along with consequential demand notice under Annexure-2. In this connection, he relied upon a decision of this Court as rendered in ABB India Limited v- State of Odisha and Others as reported in (2015) 77 VST 124 (Orissa). 5. Mr. Debadutta Beura, learned Standing Counsel for commercial Taxes defended the impugned order of assessment and submitted that the said order under Annexure-1 did not suffer from any illegality or infirmity. However, upon instruction he fairly submitted that the officer, who has issued letter no.5476 dated 6.6.2013 to the Joint Commissioner of Commercial Taxes, Bhubaneswar Range, Bhubaneswar highlighting the discrepancy in the VAT returns filed for the period 1.4.2013 to 30.4.2013 and huge mismatch and excess of claim of ITC recommending further investigation, has acted as an Assessment Officer under Section 43 of the OVAT Act resulting in issuance of Assessment Order under Annexure-1. He further submitted that the said officer has been transferred from the said post and a different Assessing Officer is pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evasion report. This is submitted for kind information. Yours faithfully, Deputy Commissioner of Commercial Taxes Bhubaneswar II Circle, Bhubaneswar Memo No:5477/CT, Dt:06.06.2013 Copy submitted to the Deputy Commissioner of Commercial Taxes, Enforcement Range, Bhubaneswar for information for necessary action. Sd/- 6.6.2013 Deputy Commissioner of Commercial Taxes Bhubaneswar II Circle, Bhubaneswar . (underlined for emphasis) The above letter clearly shows the opposite party no.1 has clearly highlighted the discrepancies and accordingly wanted further investigation in the matter. As indicated earlier as admitted by the learned counsel for the Revenue, the same officer, who made the above noted communication has later acted as the Assessing Officer resulting in issuance of the assessment order under Annexure-1. A perusal of the assessment order shows that he himself has referred to his own proposal sent vide above noted letter dated 6.6.2013 for conducting further investigation regarding mismatch in claim of ITC and consequential loss of revenue. The assessment order further shows that the gist of letter dated 6.6.2013 has been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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