Writ jurisdiction held not maitainable in case, HC

Facts in Brief:

1. The petitioner is a Government of India undertaking and a Government Company. It is registered under the Orissa Sales Tax Act as well as the Central Sales Tax Act. In respect of the assessment year 2000-01, the petitioner filed its return under the CST (O) Rules in form I, inter alia, disclosing its inter-State sales at Rs. 7,09,74,937.64.

2. Subsequently, the petitioner filed revised return for the said assessment year at the time of hearing of the original assessment case disclosing turnover of inter-State sale to the tune of Rs. 4,27,52,517.96. Vide assessment order dated March 23, 2005, the assessing officer did not accept the revised return on the ground of delay in submitting the revised return and assessed the petitioner at the figure stated in the original return wherein the inter-State sale was stated to be Rs. 7,09,74,937.64.

3. Being dissatisfied with the said assessment order, the petitioner filed an appeal before the first appellate authority which was dismissed by the latter by its order dated December 26, 2005 passed in First Appeal No. AA-(C)24/CUIE/2005-06. Against the said order, second appeal was filed in Orissa Sales Tax Tribunal.

4. While the second appeal was pending before the learned Tribunal, the assessing officer issued a notice on December 29, 2006 under Rule 10 read with Rule 12(8) of the CST (O) Rules, 1957 to the petitioner on the ground that the petitioner's turnover for the period 2001-02 has escaped assessment/has been under-assessed which is attached to the writ petition as annexure 3.

5. The said notice was issued to the petitioner on December 30, 2006 along with one letter of the even date stating the reasons for reopening of the assessment. The said letter is attached to the writ petitions as annexure 4. Subsequently, an order under Rule 12(8) of the CST (O) Rules was passed ex prate on December 15, 2007 vide annexure 7. In the impugned order, the learned assessing officer observed as follows:

6. In the instant case the dealer-company has already been assessed under Rule 12(4) of the CST (O) Rules for the period 2001-02 to a tax demand of Rs. 16,28,021. Further it is revealed that there is some inter-State transaction effected by the dealer-company during the period 2001-02.

7. But on verification of the assessment record, on prima facie, it is found that the same has not been disclosed in the return and also at the time of assessment. Thus there is a reason to believe that the dealer has been under-assessed due to default in disclosing true and correct picture of business transaction by the dealer-company during the period under question.

On appeal, HC held as under,

8. Thus, we are of the considered view that by exercising power of revision, the Commissioner cannot consider any new or fresh material which was not before the assessing officer and comes to light only after passing of the original assessment order. In the present case, the stand of the Revenue is that subsequent to the completion of the original assessment, it came to the notice of the assessing officer that there were some inter-State transactions effected by the petitioner-company during the period 2001-02. But on verification of the assessment record, prima facie the assessing officer found that the same has not been disclosed in the return and also at the time of assessment.

9. Hence, he came to the conclusion that there was reason to believe that the dealer had been under-assessed due to default in disclosing the true and correct picture of business transactions during the year in question. Petitioner's case is that the alleged transactions were already disclosed by the petitioner-company as branch transfer.

10. These are purely disputed questions of facts, which cannot be decided by this Court in exercise of its writ jurisdiction and as such the writ petition is not maintainable. In the present case, the challenge is not only to the notice issued under Rule 12(8) of the CST (O) Rules but also to the order of assessment made on the said notice.

11. Since the assessment had already been made, challenge to the legality of the notice is really without any relevance. Further, the order of assessment can be assailed in statutory appeal provided. After completion of the assessment, challenge to the legality of the notice does not survive consideration because the question whether the notice had any legal foundation could have been decided in appeal against assessment.

12. Nevertheless, as the petitioner has requested to adjudicate that aspect, therefore, we have done it, though in the normal course that could have been the subject-matter of appeal against the order of assessment.

13. Since the preliminary issue has been decided in the manner aforesaid, nothing survives for adjudication in the writ petition, which is accordingly dismissed. However, it is open to the petitioner to prefer statutory appeal against the assessment order along with petition for condonation of delay. If such an appeal is filed, the appellate authority shall consider the question of delay taking into consideration that the writ petition was pending in this Court since March 20, 2007. No cost.

Case Reference - Hindustan Petroleum Corporation ... vs State Of Orissa And Ors.