TMI Blog2021 (9) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... rcharge and interest payable by the Petitioner for the aforementioned periods. Once the assessment for a period has attained finality, and has not been re-opened by the Department in accordance with law, it is not possible for the amount of the tax, surcharge and interest payable for that period to be re-computed - In the present case too appears to be no scope for re-opening of the concluded assessments or re-computation of the amount of tax and surcharge payable for the aforementioned periods 2000- 2001, 2001-2002, 2002-2003 and 2003-2004. This Court finds the impugned re-computation orders to be unsustainable in the eye of law and therefore they are hereby set aside - Petition allowed. - W.P. (C) Nos.14486, 14487, 14491 & 14493 of 2021 - - - Dated:- 26-8-2021 - DR. S. MURALIDHAR CHIEF JUSTICE AND B.P. ROUTRAY JUDGE Petitioner Mr. R.P. Kar, Senior Counsel on behalf of Mr. Mukesh Agarwal Opposite Parties Mr. Sunil Mishra, Addl. Standing Counsel for CT GST ORDER Dr. S.Muralidhar, CJ. 1. These four writ petitions challenge the impugned recomputation orders dated 8th March, 2021 passed by the Deputy Commissioner of Sales Tax, CT GST Circle, B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was passed by the Sales Tax Officer, Balasore Circle (STO) determining that the Petitioner was entitled to a refund of ₹ 22,24,750.17. On 4th April, 2009 the Petitioner applied for grant of the above refund. The said amount was credited to the account of the Petitioner on 27th January, 2010. 7. The above decision dated 27th November, 2007 of the Full Bench of the Tribunal in the Petitioner s case was based on the decision dated 5th January, 2007 of this Court in M/s. Bajaj Auto Ltd. v. State of Odisha 2007 (1) OLR 415 (Ori). The question addressed by this Court in the said decision was whether surcharge under Sec.5-A of the O.S.T. Act is to be computed before giving the reduction of the entry tax amount as contemplated under Section 4 (1) of the Orissa Entry Tax Act or from the net amount of sales tax payable after grant of such reduction? In the aforementioned decision delivered on 5th January, 2007 the Division Bench of this Court while interpreting the provision of the OET Act read with the relevant provisions of the Orissa Entry Tax Rules (OET Rules), concluded that the modalities adopted by the state taxing authority in computing the surcharge on the gross tax a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in W.P. (C) Nos. 3707, 3709, 3710 and 3712 of 2017, the legal position did not change. The fact remains that there is no provision as such in the OST Act for re-computation of tax long after the assessment proceedings have attained finality. The relevant provision for reopening of an assessment under the OST Act is Section 12 (8). The limitation there is 5 years from the expiry of the year to which the period of assessment relates. The other provision which permits the Commissioner to suo motu revise an order is Section 23 (4) of the OST Act read with Rule 80 of the Orissa Sales Tax, Rules ( OST Rules ). Here again the limitation is 3 years from the date of passing of any order by the STO or 2 years from the date of passing of an order by the Additional Commissioner, Special Additional Commissioner or Assistant Commissioner. 13. Under Rule 26-A of the OST Rules, a registered dealer is expected to preserve books of account and other documents including bills, credit and cash memoranda, invoices and vouchers, etc. relating to the business of any year for a period of three years thereafter or for a period of 12 months after finalization of the order of assessment or penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same should not exceed the period of five years. The view of the High Court, thus, cannot be said to be unreasonable. Reasonable period, keeping in view the discussions made hereinbefore, must be found out from the statutory scheme. As indicated hereinbefore, maximum period of limitation provided for in sub-section (6) of section 11 of the Act is five years. 18. The Supreme Court further observed as under : We are however, not oblivious of the fact that ordinarily the writ court would not entertain the writ application questioning validity of a notice only, particularly, when the writ petitioner would have an effective remedy under the Act itself. This case, however, poses a different question. The Revisional Authority, being a creature of the statute, while exercising its revisional jurisdiction, would not be able to determine as to what would be the reasonable period for exercising the revisional jurisdiction in terms of section 21(1) of the Act. The High Court, furthermore in its judgment, has referred to some binding precedents which have been operating in the field. The High Court, therefore, cannot be said to have committed any jurisdictional error in passing the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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