Allowed

M/S.Hes Water Engineersindiapvt.Ltd. v. Commissioner of Commercial Taxes

Orissa HC18 Apr 2023WP(C)/16959/2015

Case brief

AI extract

What is this about?

Petition challenged an order reopening assessment under Orissa Entry Tax Act due to alleged lack of return acceptance communication. Court relied on ECMAS Resins precedent to set aside assessment and demand notice where no overt communication of acceptance occurred despite petitioner's self-assessment filing within the tax period. Permitted reopening requires explicit departmental communication.

What did the court decide?

Impugned assessment order dated 31.03.2015 and demand notice set aside; writ petition allowed with urgent certified copy.

M/S.Hes Water Engineersindiapvt.Ltd. Vs Commissioner of… — Consumer Protection | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 16959 of 2015

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M/s. HES Water Engineers (India) Pvt. Ltd. and Another

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(India) Pvt. Ltd. and Another ….. Petitioners Mr. G.M. Rath, Adv. Vs. The Commissioner of Commercial ….. Opp. Parties Taxes and Another Mr. S.K. Pradhan, A.S.C. (For C.T. & G.S.T.)

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CORAM:

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JUSTICE S.TALAPATRA JUSTICE SAVITRI RATHO

ORDER

18.04.2023

Order No.

1. This matter is taken up through hybrid mode.

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Heard Mr. G.M. Rath, learned counsel appearing for the Petitioner and also Mr. S.K. Pradhan, learned Addl. Standing Counsel, CT & GST appearing for the Opposite Parties. 3. By means of this writ petition, the order of assessment dated 31.03.2015 [served on 17.08.2015] passed under Section 10 of the Orissa Entry Tax Act, 1999 for the tax period from 01.04.2007 to 31.03.2009 has been challenged, on the ground that there was no communication as regards the acceptance of return, even though the assessee had filed the self-assessment.

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On the basis of a Property Tax Report, submitted by the

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Page 1 of 4

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Deputy Commissioner of Commercial Taxes, Vigilance, Berhampur Division, Berhampur, initiative was taken to examine the transaction as reflected in the said report and to verify the books of account of the assessee (the petitioner). In the impugned order, it has been observed inter alia as follows:

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“In addition to the balance OET payable as determined at Rs.4,13,961/- penalty under section 10(2) of the OET Act amounting to Rs.8,27,922/- has been imposed. OET and penalty taken together comes to Rs.12,41,883/-. The assessee was asked to pay the said amount as per the terms and conditions of the demand notice as served on the assessee in Form E-8.”

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According to the petitioner, as the acceptance of the return was never communicated, there cannot be reopening of the assessment under Section 10 of the OET Act.

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In this regard, a larger Bench decision of this Court in ECMAS Resins Pvt. Ltd. Vs. State of Odisha : AIR 2022 Orissa

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169 has been relied on. In that report, it has been held in Para 35 as follows:

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“35. Therefore, even Rule 15 of the OET Rules as amended requires the return to be ‘accepted’. if this is read with Rule 10 (3) to (6) of the OET Rules, it is plain that self-assessment is not automatic. It requires compliance with Section 7 (10) and 7 (11) of the OET

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Page 2 of 4

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Act. The same result would be reached from a collective reading of Section 39 of the OVAT Act with Rule 48 of the OVAT Rules as they stood prior to 1st October, 2015. The long and short of this discussion is that under the OET Act, there is no concept of ‘deemed’ acceptance of a return filed by way of self assessment if nothing is heard from the Department after it is filed. There has to be an overt act of communication of such acceptance by the Department to the dealer. ” [Emphasis added]

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It is an admitted fact there had been no communication

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accepting the return filed by way of self-assessment.

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Mr. S.K. Pradhan, learned Addl. Standing Counsel appearing

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for the Revenue has fairly submitted that this case is squarely covered by ECMAS Resins Pvt. Ltd. (supra), as there was no acceptance of the self assessed return filed by the Petitioner.

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Having appreciated the contentions of the counsel representing the Petitioner and the Opposite Parties, we are of the view that the said order of assessment dated 31.03.2015 [served on

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17.08.2009] as drawn under Section 10 of the Orissa Entry Tax Act, 1999 for the tax period of 01.04.2007 to 31.03.2019 cannot survive

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the scrutiny of law and accordingly, the same is interfered with and set aside.

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Page 3 of 4

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