TMI Blog2022 (12) TMI 463X X X X Extracts X X X X X X X X Extracts X X X X ..... ty, Section 42(5) of the OVAT Act does not. This Court answers the question framed in the affirmative i.e. in favour of the Department and against the Petitioner-Assessee. The revision petitions are accordingly dismissed, but in the circumstances, with no other as to costs. - STREV No. 47 of 2015 and STREV No. 33 of 2016 - - - Dated:- 6-12-2022 - S. MURALIDHAR CHIEF JUSTICE AND M.S. RAMAN, JUDGE Advocates, appeared in these cases: For Petitioner : Mr. Kartik Kurmy, Advocate For Opposite Party : Mr. S.K. Pradhan Addl. Standing Counsel JUDGMENT Dr. S. Muralidhar, CJ. 1. These two revision petitions arise out of similar set of facts involving the same parties and identical questions of law and are, accordingly, being disposed of by this common judgment. 2. STREV No. 47 of 2015 by the Petitioner-Assessee arises from an order dated 22nd August, 2015 passed by the Odisha Sales Tax Tribunal, Cuttack (Tribunal) in S.A. No.154(V) of 2014-15 for the period 1st April, 2007 to 30th June, 2010 whereby the Tribunal dismissed the Assessee s appeal against the order dated 19 th August, 2014 of the Additional Commissioner Sales Tax, North Zone (Addl. CST) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. In the above context of Section 42 (5) of the OVAT Act, it was contended by Mr. Kurmy, learned counsel for the Petitioner, that on the strength of the judgment of this Court in Jindal Stainless Limited v. State of Odisha (2012) 54 VST 1 (Orissa), this Court ought to hold that unless there was an element of mens rea and it was shown that there was a suppression of purchase or sales, the no penalty ought to be imposed under Section 42(5) of the OVAT Act. Reliance was also placed on the decision in M/s. National Aluminium Company Ltd. v. Deputy Commissioner of Commercial Taxes (2012) 56 VST 68 (Ori). It was submitted that unless there was an intention to evade tax, penalty could not be levied. In support of this contention, reliance was placed on the decision in State of Gujarat v. Jay Steel and Tubes Traders [2015] 80 VST 530 (Guj). Relying on the decision in the State of Gujarat v. Nishi Communication (2015) 80 VST 535 (Guj) it was submitted that as long as the dealer had sufficient ITC to be adjusted against the tax demand, there was no reason to levy interest or penalty. 9. Mr. S.K. Pradhan, learned ASC for the Department on the other hand submitted that this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those produced by the dealer and after causing such other enquiry as he deems necessary, assess the tax due from that dealer accordingly. (5) Without prejudice to any penalty or interest that may have been levied under any provision of this Act, an amount equal to twice the amount of tax assessed under sub-section (3) or sub-section (4) shall be imposed by way of penalty in respect of any assessment completed under the said subsections. (6) Notwithstanding anything contained to the contrary in any provision under this Act, an assessment under this section shall be completed within a period of six months from the date for receipt of the Audit Visit Report: Provided that if, for any reason, the assessment is not completed within the time specified in this sub-section, the Commissioner may, on the merit of each such case, allow such further time not exceeding six months for completion of the assessment proceeding. (7) No order of assessment shall be made under sub-section (3) or sub-section (4) after the expiry of one year from the date of receipt of the Audit Visit Report. 11. In Jindal Stainless Limited (supra) while upholding the constitutional validity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AT Act and the default penalty under Section 42(5) of the OVAT Act was drawn and it was observed as under: 11. The Court notes that under Section 42(5) of the OVAT Act the penalty levied is equal to twice the amount of tax assessed under Section 42(3) or 42(4) pursuant to an audit assessment. There is no discretion with the Assessment Officer (AO) to reduce this amount of penalty. On the other hand, Section 43(2) of the OVAT Act is under the heading Turnover escaping assessment and is differently worded. It reads thus: 43 (2) If the assessing authority is satisfied that the escapement or under assessment of tax on account of any reason(s) mentioned in sub-section (1) above is without any reasonable cause, he may direct the dealer to pay, bay way of penalty, a sum equal to twice the amount of tax additionally assessed under this section. 13. Both the above decisions of the Co-ordinate Bench of this Court were noticed by this Court in its judgment in State of Odisha v. Chandrakanta Jayantilal (supra), where it was observed as under: 14. It will be straightway noticed that the very wording of Section 42 (5) indicates that once as assessment is completed under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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