TMI Blog2022 (4) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... up by virtual/physical mode. 2. Assailing the notice bearing No.352/CT, dated 09.02.2022 for recovery of arrear demand issued by Joint Commissioner of CT and GST, CT GST Circle, Cuttack-I Central, Cuttack for an amount of ₹ 42,34,209/- under the Odisha Value Added Tax Act, 2004 ( OVAT Act , for brevity) pertaining to the tax periods from 01.04.2013 to 30.09.2015, the Petitioner sought to invoke the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India with the following prayers: *** *** *** *** *** *** It is therefore, humbly prayed that this Hon ble Court may graciously be pleased to admit this writ petition, issue rule nisi calling upon the Opposite Parties as to; (A) why the recovery of Arrear demand notice dated 09.02.2022 under Annexure-1 shall not be quashed and (B) why the assessment order dated 14.07.2017 under Annexure-2 shall not be quashed. And (C) why the Opposite Party No. 2 shall not be directed to dispose of the Revision within a stipulated period. If the opposites fail to show cause or show insufficient cause the Hon ble Court may be pleased to make the rule absolute by quashing the Annexure-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 79(2) of the Orissa Value Added Tax Act, 2004 challenging the assessment order dated 14.07.2007 for the period 01.04.2013 to 30.09.2015 of Shalimar Chemical Works Pvt. Ltd. Assessed under Tin No. 21891201533 passed by the Sales Tax Officer Cuttack-1, Central Circle Cuttack. The counsel for the opposite parties has referred to the following reason cited by the Joint Commissioner of CT GST in the notice for recovery of demand vide Annexure-1: *** The correct remedy was to go for appeal with predeposit. However, you have no stay order in your favour. So, kindly reply by 17.02.2022 why recovery proceedings will not be initiated against you in the given circumstances. *** Therefore, Mr. Padhy, counsel for the Opposite Parties submits that since revision petition U/s 79(2) is not maintainable to question the assessment framed U/s 42 of the OVAT Act, 2004, the demand raised in the assessment vide order dated 14.07.2017 (Annexure-2) stands. For the said reason, no infirmity or invalidity can be attributed to the notice dated 09.02.2022 (Annexure-1). 5. At this juncture it is fruitful to notice sub-section (1) of Section 77 and sub-section (2) of Section 79 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der shall be entertained by the appellate authority, unless it is accompanied by satisfactory proof of payment of admitted tax in full and ten per centum of the tax or interest or both, in dispute. (5) On admission of appeal, realization of the balance tax, interest or penalty, as the case may be, under dispute shall be deemed to be stayed in full till disposal of the appeal. 8. Even otherwise, it is a well known principle of law established that appeal shall not operate as a stay of proceeding or an order unless the Appellate Authority or Court passes an order of stay during the pendency of the appeal. This principle of law is also incorporated in the provisions of Rule 5(1) of Order 41, of the Code of Civil Procedure, 1908 which stipulate that an appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the appellate Court may order, nor shall execution of a decree be stayed by reason of only an appeal having been preferred from the decree. Reference may be had to IPISTEEL Ltd. Vrs. Central Electricity Supply Company of Orissa Ltd., 2004 (II) OLR 523. In the instant case, it is not the case of the petitioner that it had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount. (6) When a dealer is in default in making the payment of any amount payable by him under sub-sections (4) and (5) he shall be liable to pay simple interest on such amount at the rate of two per centum per month with effect from the date of such default till the payment of the amount. (7) All amounts that remain unpaid after the due date of payment in pursuance of the notice issued under subsection (4) and sub-section (5) shall be recoverable as arrears of public demand or in accordance with the provisions contained in Schedule E. Since no stay is shown to have been in operation restraining the recovery of demand of ₹ 42,34,209/- pertaining to the tax periods from 01.04.2013 to 30.09.2015 raised in the assessment vide order dated 14.07.2017 (Annexure-2), we are not inclined to entertain the writ petition and interfere in the matter. 10. Looking at the matter in different angle, it is apt to say that writ petition is not entertainable against the Show Cause Notice in view of parameters laid down in Union of India Vrs. Coastal Container Transporters Association, (2019) 20 SCC 446; Star Paper Mills Ltd. Vrs. State of Uttar Pradesh, (2006) 148 STC 144 (S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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