2021 (9) TMI 900 - HC - VAT and Sales Tax

Jurisdiction - Suo motu revisional power - power of ACST to exercise revisional power - Section 79(1) of the Orissa Value Added Tax Act, 2004 (OVAT Act) read with Rule 119 of the Odisha Value Added Tax Rules, 2005 (OVAT Rules) - HELD THAT - A careful reading of Section 106 (2) (c) of the OVAT Act would reveal that during the transitional period between the repeal of OST Act and till such time there was a fresh delegation of the powers of the Commissioner under the OVAT Act, the earlier delegation of powers under the OST Act would continue. The Court s attention has been drawn to the fact that under the Notification No.14171-I-ST-76 dated 3rd August 1963 read with earlier order dated 5th May, 1963 the suo motu powers of the Commissioner exercisable under Section 23 (4) (a) was in fact delegated to the ACST in so far as the order sought to be revised is that the STO. This delegation of power continued till 17th July, 2008 when the notification of the OVAT Act was issued for the first time delegating the power of the Commissioner to the ACST under Section 79(1) of the OVAT Act. The position is that as on 31st January, 2008, the ACST could validly exercise the delegated power of suo motu revision in terms of Section 106 (2) (c) of the OVAT Act. Consequently, the challenge to the impugned notification on the ground that ACST did not have any power to issue such notice is hereby negatived. The second ground of challenge is that no reasons have been set out in the impugned notice for exercise of suo motu revisional power by the ACST. A plain reading of the impugned notice reveals the reasons that weighed with the ACST - the Court finds no merit in this contention - Petition dismissed.

Summary

Issues:
Challenge to jurisdiction of ACST to exercise revisional power under OVAT Act.
Absence of reasons in the impugned notice for exercising suo motu revisional power.

Analysis:
1. The primary issue in this case is the challenge to the jurisdiction of the Assistant Commissioner of Sales Tax (ACST) to exercise suo motu revisional power under Section 79(1) of the Orissa Value Added Tax Act, 2004 (OVAT Act). The Petitioner contends that the ACST did not have the authority to exercise such power based on the delegation of powers by the Commissioner of Sales Tax. The Petitioner's counsel pointed out that prior to July 17, 2008, the ACST was not delegated the power under Section 79(1) of the OVAT Act, rendering any action taken by the ACST before that date as null and void.

2. Conversely, the Standing Counsel for the Opposite Parties argued that under Section 106 of the OVAT Act, transitional provisions allowed for the continuation of powers delegated under the erstwhile Orissa Sales Tax Act, 1963 (OST Act). The Opposite Parties' counsel highlighted that the delegation of revisional powers to the ACST under the OST Act remained valid until the Commissioner issued a fresh delegation under the OVAT Act. Therefore, the impugned notice issued by the ACST was deemed valid based on the transitional provisions.

3. The Court examined Section 106(2)(c) of the OVAT Act, which addresses transitional provisions, and concluded that during the transitional period between the repeal of the OST Act and the issuance of a new delegation under the OVAT Act, the earlier delegation of powers under the OST Act would continue. The Court noted that the delegation of revisional powers to the ACST under the OST Act remained in force until July 17, 2008, when the Commissioner delegated powers under the OVAT Act to the ACST under Section 79(1).

4. Consequently, the Court held that as of January 31, 2008, the ACST had the valid authority to exercise the delegated power of suo motu revision under Section 106(2)(c) of the OVAT Act. The challenge to the impugned notice on the grounds of lack of jurisdiction was dismissed.

5. The second ground of challenge pertained to the absence of reasons in the impugned notice for the exercise of suo motu revisional power by the ACST. The Court reviewed the impugned notice and found that it did contain reasons for the revisional action taken by the ACST. Therefore, the Court found no merit in this contention.

6. In conclusion, the interim order was vacated, and the petition challenging the impugned notice was dismissed. The Petitioner was granted the opportunity to respond to the show cause notice issued on January 31, 2008, by April 5, 2021. Subsequently, the ACST was directed to proceed in accordance with the law and dispose of the notice.