Disposed

M/S.P.Das and Co. v. State

Orissa HC1 May 2019WP(C)/10005/2003

Case brief

AI extract

What is this about?

The High Court in a consolidated writ petition held that the question of law regarding the validity of tax under The Orissa Forest Development (Tax on sale of forest produce by Government or Orissa Forest Development Corporation) Act, 2003 was already adjudicated in a batch of similar petitions. The Court disposed of the present petition in accordance with the earlier judgment, directing refunds f

What did the court decide?

Writ petition disposed of in terms of an earlier judgment; tax collected prior to notification of rates declared bad in law and directed to be refunded with interest.

M/S.P.Das and Co. Vs State — Constitutional and Fundamental Rights | Orissa HC (2019)

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W.P.(C) No.10005 OF 2003

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01.05.2019 Consolidated writ petition filed by the learned counsel for the petitioner is accepted.

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Heard learned counsel for the parties.

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By way of this writ petition, the petitioner has challenged the levy and collection of Orissa Forest Development Tax under Section 3 of The Orissa Forest Development (Tax on sale of forest produce by Government or Orissa Forest Development Corporation) Ordinance, 2003 vide Orissa Ordinance No.3 of 2003, dated 18.07.2003, which has been subsequently enacted into an Act, i.e., The Orissa Forest Development (Tax on sale of forest produce by Government or Orissa Forest Development Corporation) Act, 2003 on 8.12.2003, i.e., Orissa Act 18 of 2003 (for short “the Act, 2003”) making it effective from 18.07.2003. Petitioner has further challenged the levy of the tax with effect from 18.07.2003 on the ground that the rate of tax has been notified only with effect from 30.07.2003.

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This Court in a batch of similar writ petitions in W.P.(C) No.12373 of 2003 (M/s. K.B. Saha and sons Industries Pvt. Ltd. & Another v. State of Orissa and others) and other writ petitions vide judgment dated 10.04.2019 has come to hold as follows:

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“16. Tax on sale and purchase of goods other than the newspaper is subject to the provisions of Entry 92A. Therefore, it will be very difficult for us to hold that the State has no competence to enact the Act, but while interpreting the provisions of the Act and the charging Section i.e. Section 3 of the Act, we are of the view that the Act in question, which came into force, will operate only for intra-State sales i.e. sales within the State of Orissa. In so far as transactions which are clearly inter-state transactions in nature, as in the present cases, there can be no levy of the said tax in view of

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the clear provisions under Entry-92A of List-I of the Constitution of India.

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In that view of the matter, we are of the opinion that the transactions which are within the State of Orissa, this tax can be levied. But, the transaction which is inter-State, the provisions of the Act cannot be operated in view of Entry 92A.

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Considering the entire fact situation of the case, relevant provisions of the Act and the decisions referred to above, the writ petitions are disposed of with declaration that for transactions which are interState in nature, the provision of the Act, 2003 will not be enforced. Therefore, the Corporation will examine facts of each of the matter individually and recommend the State Government or the competent authority for refund of the Tax collected.

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So far as the argument of Mr. R.P. Kar, learned counsel, with regard to collection of tax from 18.07.2003 to 30.07.2003, in view of the Notification which came to be published for the first time on 30.07.2003, tax collected prior thereto is declared to be bad in law, hence the same is also required to be refunded.

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It is made clear that the amount of tax collected, which is lying with the Corporation, will be refunded by the Corporation and if it is lying with the State Government, the same will be refunded by the State Government.

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The refund shall be made within a period of four months from the date of receipt of a copy of this judgment along with application for refund from the petitioners individually. If the amount is not refunded, as directed, within four months, then claimant will be entitled to interest at the rate of 8% from the date of depositing the amount.”

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Since, we find that the present writ petition involves similar question of law and the petitioner is similarly situated, we dispose of this writ petition in the aforesaid terms and conditions as observed in our judgment, dated 10.04.2019, passed in W.P.(C) No.12373 of 2003 (M/s. K.B. Saha and sons Industries Pvt. Ltd. & Another v. State of Orissa and others) and other similar writ petitions. No order as to cost.

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Urgent certified copy of this order be granted on proper application.

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AKK

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( K.S. Jhaveri ) Chief Justice

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��.��.. ( K.R.Mohapatra ) Judge

M/S.P.Das and Co. v. State

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M/S.P.Das and Co. v. State

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