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TMI Blog2018 (3) TMI 1534X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the event a direction is given for filing of the appeal under the Odisha Value Added Tax Act, 2004, for short "the OVAT Act". 2. According to the petitioner it operates a sole Proprietorship business and deals in Gold Bullion and Ornaments. Most of its purchases are made from the Punjab National Bank, for short, "the Bank". The petitioner-assessee purchases Gold Bullion under a rate cutting contract and "the Bank" in turn purchases Bullion from the foreign dealers. As per the Bullion agreement with "the Bank" under Annexure-3, the petitioner places order for Bullion with "the Bank" in the form of an indent and "the Bank" negotiates with the foreign Bullion dealers for the consignment. On receiving the same, "the Bank" informs the petitioner to take delivery of it. When the petitioner takes delivery of stock, a delivery challan is issued at the rate of gold price prevailing on that day. But according to the petitioner, the same is not final sale price. Since the transaction of purchase of Gold bullion by "the Bank" from the foreign Bullion dealers are in terms of international rates of Bullion and foreign exchange rates, both of which keep fluctuating; as per terms of business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29.6.2013 under Annexure-6 was prepared, which fallaciously showed that return filed by the assessee claiming input tax credit continuously resulted in eating away the output tax actually generated thereby defaulting in payment of output tax by claiming erroneous input tax credit. Hence, the Sales Tax Officer, Enforcement Range, Bhubaneswar recommended for initiation of action under Section 43 of "the OVAT Act" under Annexure-6. According to the petitioner, basing on the report under Annexure-6, the Assessing Officer passed the impugned order of Assessment under Section 43 of "the OVAT Act" as per Annexure-1 on the ground that the petitioner-assessee is continuously claiming excess input tax credit than what was actually admissible. Consequently, the impugned demand notice under Annexure-2 has been issued. 3. Heard Mr. Dalei, learned counsel for the petitioner and Mr. Debadutta Beura, learned Standing Counsel for Commercial Taxes. 4. Mr. Dalei, learned counsel for the petitioner submitted that the entire decision making process resulting in passing of assessment order under Annexure-1 and consequential demand notice under Annexure-2 has been vitiated as the Officer/Deputy Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said post and a different Assessing Officer is presently posted. 6. Having heard the parties, the sole issue that falls for our consideration is whether the opposite party no.2, who on finding discrepancies in the VAT returns had recommended further investigation and wanted submission of detailed enquiry report/evasion report, was competent to assess the petitioner under Section 43 of "the OVAT Act"? As per direction of this Court, Mr. Beura, learned Standing Counsel produced the relevant records including the letter dated 6.6.2013 referred to above. 7. In order to appreciate the issue in a proper manner, we think it appropriate to extract the letter dated 6.6.2013 written by opposite party no.2 to the Joint Commissioner of Commercial Taxes in full as hereunder:- "OFFICE OF THE DEPUTY COMMISSIONER OF COMMERCIAL TAXES, BHUBANESWAR II CIRCLE, BHUBANESWAR. No._________________CT., Date__________________ To The Joint Commissioner of Commercial Taxes, Bhubaneswar Range, Bhubaneswar. Sub: Discrepancies detected on verification of Column No.57 of M/s. Subash & Company, Bhubaneswar, TIN-21191106567 and M/s. Punjab National Bank, Bhubaneswar, TIN-21301117904, in the VAT return f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessment order itself. In such background, the likelihood of bias of opposite party no.2 while doing assessment cannot be ruled out. It is well settled that the principles of natural justice demand that nobody shall be a judge of his own cause. It is equally well settled that justice should not only be done but also should be manifestly be seen to have been done. In this context, it would be appropriate to quote the observations made by this Court in Tata Sponge Iron Limited -v- Commissioner of Sales Tax, Orissa and Others reported in (2012) 49 VST 33 (Orissa) has held as follows:- "Therefore, we are of the view that in order to maintain transparency, any officer who is involved in any manner or has acted with the process of audit and preparation of the audit report in respect of the dealer should not be the assessing officer of that dealer. Otherwise, there will be violation of cardinal principles of natural justice. Our view is fortified by the judgment of this court in National Trading Co. [2001] 122 STC 212 (Orissa) wherein this court held as follows:- (page 213 in 122 STC) : "...Although many contentions were raised in support of the writ petition, we need no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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