9911796707
TMI Blog2023 (3) TMI 275X X X X Extracts X X X X X X X X Extracts X X X X ..... way of the impugned order dated 10th May, 2016 under Section 18(1) of the Odisha Entry Tax Act, 1999 (OET Act) without jurisdiction inasmuch as an appeal filed against the Assessment Order sought to be revised, was already pending at the instance of the Assessee? ii. Is the exercise of the suo motu revisional power by the Additional Commissioner of Sales Tax by the impugned order dated 10th May, 2016 barred by limitation? 3. In the present case, the original assessment of the Appellant- Dealer under Section 9C of the OET Act for the period 1st April, 2005 to 31st March, 2008 was completed on 28th March, 2011 by the Deputy Commissioner of Sales Tax (DCST), Bhubaneswar II Circle raising a demand of Rs.37,30,881/- (Entry Tax Rs.5,05,365/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be concluded not beyond five years from the original order of assessment. Section 18(2) of the OET Act reads as under: "18. Revisional powers of Commissioner.- (1) xxx xxx xxx (2) The Commissioner shall not revise, under sub-section (1), any order, if- (i) period for filling of appeal against the order as provided under section 16 or 17 has not expired; or (ii) the order has been made a subject matter of appeal under section 16 or 17; or (iii) more than five years have expired after the order, sought to be revised, was passed. Explanation.- In computing the period of limitation for the purposes of this sub-section, any period during which any proceeding under this section is stayed by an order or injunction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s.12,814/-. But, subsequently, on receipt of objection raised by the audit party questioning grant of exemption under the Central Act, opposite party no.3 reopened the assessment, called upon the petitioner to participate in the reassessment proceeding and, by order dated 25.08.1993, disallowed the claim of exemption and demanded a sum of Rs.7,696/- under the Central Act. The Assistant Commissioner of Sales Tax, Cuttack-II Range, Cuttack-opposite party no.2 initiated a proceeding under Rule 80 of the Orissa Sales Tax Rules to revise the reassessment already made, vide order dated 25.08.1993, in the year 1990-91 and held, by order dated 05.09.1996, that claim for exemption made by the petitioner is not allowed and that the entire claim of ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riting, the Commissioner may, upon application by a dealer (or person) or on his own motion revise any order made under this Act or the rules made thereunder by any person other than the Tribunal, appointed under sub-section (3) of Section 3 to assist him: Provided that the Commissioner shall not entertain any such application for revision if the dealer (or person) filing the same having a remedy by way of appeal under sub-section (1), or sub-section (3) did not avail of such remedy or the application is not filed within the prescribed period. xx xx xx "Rule 80. Revision by the Commissioner Suo Motu The Commissioner may on his own motion at any time within three years from the date of passing of any order by the Sales Tax Officer or w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings for revision. 8. The only question which remains for determination of this Court is as to whether under Rule 80 of the Rules, revisional proceedings are to be concluded from the date of passing of the final orders passed within a period of three years sought to be revised or the proceedings if initiated within three years can be concluded beyond the period of three years. 9. For the purpose of this case, the relevant Rule 80 can be read in the manner that the Commissioner may on his own motion at any time within three years from the date of passing of any order by the Sales Tax Officer......., call for records of the proceedings in which such order was passed and if he considers that any order passed therein is erroneous......... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht to be exercised by the Additional Commissioner. This too is impermissible in law as has been held by this Court in M/s. Sarala Project Works Pvt. Ltd. v. Additional Commissioner of Sales Tax, Cuttack, W.P.(C) No. 5129 of 2016, vide Order dated 22nd December, 2022 where it was held as under: "10. The counter affidavit fails to answer to the principal ground of challenge viz., that despite there being available to the Department the remedy of an appeal in terms of Section 78 of the OVAT Act, the Commissioner has chosen to exercise suo motu revisional power under Section 79 (1) of the OVAT Act. Further, there is no denial in the counter affidavit that there is statutory bar under Section 79 (4) (b) of the VSAT Act to the Commissioner exer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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