TaxTMI 
TaxTMI 
2021 (12) TMI 577
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....ioner (JCST), Jajpur Range, Jajpur Road dismissing the Petitioner's First Appeal Case No.AA-399/CUIII/13-14 and thereby confirming the order dated 19th December, 2012 passed by the Sales Tax Officer (STO), Jajpur Circle, Jajpur Road raising a demand of Rs. 3,92,434/- against the Petitioner for the period 1st April, 2010 to 31st March, 2011 under Section 43 of the Odisha Value Added Tax Act, 2004 (OVAT Act). 2. While admitting this revision petition on 13th November, 2017 following question was framed for consideration: "Whether in absence of completion of assessment under Sections 39, 40, 42 or 44 of the OVAT Act, reassessment under Section 43 of the said Act made by the authority below is sustainable in law? 3. On the same date, an int....
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....rt of India in Ghanashyam Das v. Regional Assistant Commissioner of Sales Tax, Nagpur AIR 1964 SC 766; the Full Bench of this Court in M/s. Jaynarayan Kedarnath v. Sales Tax Officer, Cuttack-I West Circle (1988) 68 STC 25 and Balaji Tobacco Stores v. The Sales Tax Officer (decision dated 18th March, 2015 of this Court in W.P.(C) No.31251 of 2011). By referring to Sections 39, 40, 42, 43 and 44 of the OVAT Act, 2004 and the amendments made thereto with effect from 1st October, 2015 together with the pre and post amended Rules and in particular Rule 50, Mr. Sahoo submitted that during the relevant period when the reassessment proceedings commenced it was the unamended Section 43 that was to apply. It is submitted that without there actually b....
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....no reopening of the assessment without a formal acceptance of the original return filed by the Assessee by way of self-assessment. 11. The above submissions have been considered. Undoubtedly, by the amendment brought out with effect from 1st October, 2015 the scheme of filing of tax returns, their scrutiny and the manner of invoking Section 43 of the OVAT Act for reopening the assessment underwent significant changes. In Section 39, to begin with, sub-section (2) was substituted with effect from 1st October, 2015 in the following manner: Section 39(2) after 1.10.2015 Section 39(2) prior to the amendment with effect from 01.10.2015 If a registered dealer furnishes the return in respect of any tax period, it shall be deemed to be self-as....
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....nt the amount of tax due from the dealer. Where, after a dealer is assessed under Section 39, 40 [42 or 44] for any tax period, the assessing authority, on the basis of any information in his possession, is of the opinion that the whole or any part of the turnover of the dealer in respect of such tax period or tax periods has - (a) escaped assessment, or (b) been under-assessed, or (c) been assessed at a rate lower than the rate at which it is assessable; or that the dealer has been allowed- (i) wrongly any deduction from his turnover, or (ii) input tax credit, to which he is not eligible, The assessing authority may serve a notice on the dealer in such form and manner as may be prescribed and after giving the dealer a reasona....
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.... and 44 for any tax period, the question of reopening the assessment under Section 43 (1) of the OVAT Act did not arise. 16. While the "White Paper on State Level Value Added Tax' brought out in 17th January, 2005 does envisage in para 2.12 that the "dealer will be deemed to have been self assessed on the basis of before the returns submitted by him' such an observation is at the highest recommendatory in nature. It cannot be elevated to the status of law. 17. A perusal of the decision of this Court in Nilachal Ispat Nigam Ltd. (supra) reveals that it was in the context of the Orissa Entry Tax Act (OET Act). Secondly, this Court had no occasion in the said decision to discuss the effect of more or less similar amendments effected to the p....
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.... that the entire turnover or a part thereof of a dealer had escaped assessment, for the assessment was not completed and if, completed, it might be that the entire turnover would be caught in the net.' 20. This Court in order dated 29th February, 2008 in W.P.(C) No. 2777 of 2008 (M/s. Jayshree Chemicals Ltd. v. State) observed as under: "Apart from that, the concept of escaped assessment under Section 43 of the Orissa Value Added Tax Act comes into play only when the assessment has been made and completed. In the instant case, without assessment being complete, the notice of escaped assessment is misconceived and as such the said notice under Annexure-1 is quashed.' 21. A comparison of the language used in the amended Section 43 (1) o....