Orissa High Court
M/S. Ecmas Resins Pvt. Ltd vs State Of Orissa & Others .... Opp. ... on 31 March, 2022
Author: R.K.Pattanaik
Bench: R.K.Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P. (C) No. 7458 of 2015
M/s. ECMAS Resins Pvt. Ltd. .... Petitioner
Mr. J.Sahoo, Senior Advocate
along with Ms.Kajal Sahoo, Advocate
-versus-
State of Orissa & Others .... Opp. Parties
Mr. S.K.Mishra, Senior Standing counsel
For (CT & GST)
CORAM:
THE CHIEF JUSTICE
JUSTICE R.K.PATTANAIK Order No. ORDER 31.03.2022
16. 1. One of the issues involved in the present case is whether the impugned order of reassessment for the period 1st April, 2008 to 31st March, 2014 is valid in view of the non-communication of the acceptance of the original return filed by the assessee by way of self-assessment under Section 9 (2) of the Orissa Entry Tax Act, 1999 (OET Act)?
2. Mr. Sahoo, learned Senior counsel for the Petitioner placed on the decision of this Court in M/s. Keshab Automobiles v. State of Odisha (decision dated 1st December, 2021 in STREV No. 64 of 2016) which holds in the context of Section 43 read with Section 39 the Odisha Value Added Tax Act, 2004 (OVAT Act) that unless such acceptance of the return filed by way of self-assessment is actually communicated to the assessee, there cannot be a re-opening of the assessment.
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3. Mr. Sunil Mishra, learned Senior Standing counsel for the Department on the other hand refers to the decision dated 7th December, 2016 of the Co-ordinate Division Bench of this Court in W.P. (C) No.22343 of 2015 (M/s. Nilachal Ispat Nigam Ltd. v. State of Odisha) which arose under the OET Act and in para 12 of which it has been concluded that for the purposes of Section 10 of the OET Act there need not be a formal communication by the Department to the Assessee of the acceptance of the original return filed by way of self- assessment under Section 9 (1) of the OET Act.
4. It will be noticed here that the decision in Keshab Automobiles (supra) arose under the OVAT Act. The effect of the amendment to Sections 39 and 43 of the OVAT Act with effect from 1st October, 2015 by way of the OVAT (Amendment) Act, 2015 was being considered there. It will be noted here that the said issue does not arise as far as the OET Act is concerned since there was no corresponding amendment to the OET Act in 2015. Also, the wording of Section 10 of the OET Act which pertains to reopening of assessment is not in pari materia with its counterpart Section 43 of the OVAT Act. Nevertheless Section 9 (2) of the OET Act which pertains to self-assessment and is a counterpart of Section 39 of the OVAT Act does contemplate 'acceptance' of the return filed by way of self-assessment. Therefore, the question whether without the communication of the acceptance of such self- assessment, there can be a re-opening of the assessment would still arise for consideration.
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5. Having considered the legal position on the question of 'acceptance' of a return filed by way of self-assessment as discussed in Keshab Automobiles (supra), although it was in the context of the OVAT Act, this Court is of the view that the correctness of the opinion expressed by the co-ordinate Bench of two learned judges of this Court in para 12 of the decision in Nilachal Ispat Nigam Ltd. v. State of Odisha (supra) interpreting Section 9 (2) read with Section 10 of the OET Act requires to be re-considered.
6. Accordingly, the present petition is directed to be placed before the larger Bench of three Judges on 28th June, 2022 to consider the following question:
"Is the view taken by the Division Bench of this Court in its decision dated 7th December 2016 in W.P. (C) No.22343 of 2015 (M/s. Nilachal Ispat Nigam Ltd. v. State of Odisha) in the context of Section 9 (2) read with Section 10 of the OET Act require reconsideration? In other words, whether a formal communication of the acceptance of the return filed by way of self-assessment under Section 9 (2) of the OET Act is a pre- requisite to the reopening of an assessment under Section 10 (1) of the OET Act?"
7. The interim order shall continue till the next date.
(Dr. S. Muralidhar)
Chief Justice
( R.K.Pattanaik)
Kabita Judge
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