TaxTMI 
TaxTMI 
2022 (4) TMI 3
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....isha Value Added Tax Act, 2004 ("OVAT Act", for brevity) pertaining to the tax periods from 01.04.2013 to 30.09.2015, the Petitioner sought to invoke the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India with the following prayers: "*** *** *** *** *** *** It is therefore, humbly prayed that this Hon'ble Court may graciously be pleased to admit this writ petition, issue rule nisi calling upon the Opposite Parties as to; (A) why the recovery of Arrear demand notice dated 09.02.2022 under Annexure-1 shall not be quashed and (B) why the assessment order dated 14.07.2017 under Annexure-2 shall not be quashed. And (C) why the Opposite Party No. 2 shall not....
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....re-1. 4. Mr. Sidhartha Shankar Padhy, Advocate appearing for the Opposite Parties vehemently objected to the contention of the Petitioner. He submits that the interim order passed in STREV No. 49/2015 relating to the tax periods from 01.04.2005 to 30.09.2009 does not reveal that this Court has granted stay of operation of order passed by the Odisha Sales Tax Tribunal in the second appeal while admitting the STREV bearing No.49/2015. Essentially, therefore, he contends that the finding and observation of the Tribunal are very much binding on the Revenue Authorities so long as the same is not overturned. The counsel for the Opposite Parties further advanced argument that as per Section 77(1) of the OVAT Act, aggrieved by the asse....
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.... it is fruitful to notice sub-section (1) of Section 77 and sub-section (2) of Section 79 which are reproduced hereunder:- Section 77(1): "(1) Any dealer aggrieved by an order passed under Section 34, 40, 42, 42A, 43, 44, 45, 49 or 52 may prefer an appeal to such authority as may be prescribed.] Section 79(2):- "(2) Subject to rules and for reasons to be recorded in writing, the Commissioner may, upon application filed within the prescribed period, revise any order, other than an order of the Tribunal, passed by any person appointed under sub-section (2) of Section 3 to assist the Commissioner." Reading both the provisions as extracted above would manifest that against the assessment order passed U/s 42, the ag....
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....AT Act to ventilate its grievance by way of filing appeal before the proper authority. The provisions of sub-sections (4) and (5) thereof after amendment by virtue of the OVAT (Amendment) Act, 2017 stand as follows: "(4) No appeal against any order shall be entertained by the appellate authority, unless it is accompanied by satisfactory proof of payment of admitted tax in full and ten per centum of the tax or interest or both, in dispute. (5) On admission of appeal, realization of the balance tax, interest or penalty, as the case may be, under dispute shall be deemed to be stayed in full till disposal of the appeal." 8. Even otherwise, it is a well known principle of law established that appeal shall not operate ....
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....ent of tax due; or (b) tax assessed under Sections 39, 40, 42, 42A, 43, 44, or 45 less the sum already paid in respect of any tax period, together with interest required to be paid and the penalty, if any, imposed under Section 42, 43 or Section 44; or (c) penalty imposed under any provision of this Act not covered by clause (b); or (d) any other dues under this Act, shall be paid by the dealer in the manner provided under sub-section (2) within thirty days from the date of service of the notice issued by the assessing authority for the purpose. (5) Where a dealer fails to make payment of the tax assessed, interest payable or penalty imposed or any other amount due from him under this Act within thirty da....
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....n operation restraining the recovery of demand of Rs. 42,34,209/- pertaining to the tax periods from 01.04.2013 to 30.09.2015 raised in the assessment vide order dated 14.07.2017 (Annexure-2), we are not inclined to entertain the writ petition and interfere in the matter. 10. Looking at the matter in different angle, it is apt to say that writ petition is not entertainable against the Show Cause Notice in view of parameters laid down in Union of India Vrs. Coastal Container Transporters Association, (2019) 20 SCC 446; Star Paper Mills Ltd. Vrs. State of Uttar Pradesh, (2006) 148 STC 144 (SC); South India Tanners & Dealers Association Vrs. Deputy Commissioner of Commercial Taxes, (2008) 23 VST 8 (SC); Supreme Paper Mills Limited Vrs. Assi....