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TMI Blog2021 (10) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the DCST to issue fresh orders re-computing the amount payable on the basis of the limited modification as regards interest, not later than 1st November, 2021. It is made clear that it would not be open to the Petitioner to again challenge the said order as long there is in conformity with the directions issued in the present judgment of this Court. Petition disposed off. - W.P.(C) Nos. 2225, 2229 and 2233 of 2017 - - - Dated:- 1-10-2021 - DR. S. MURALIDHAR CHIEF JUSTICE AND B.P. ROUTRAY JUDGE Petitioner Mr. Jagabandhu Sahoo, Senior Advocate along with Ms. K. Sahoo, Advocate Opposite Parties Mr. Sunil Mishra, ASC for Revenue Department and Mr. M. K. Khuntia, AGA for the State JUDGMENT Dr. S. Muralidhar, CJ. 1. These three petitions arise out of a common set of facts and are accordingly disposed of by this common judgment. 2. W.P.(C) No.2225 of 2017 filed by M/s. Sky Automobiles challenges a notice dated 11th January 2017 issued by the Deputy Commissioner of Sales Taxes (DCST), Cuttack-II Circle, Cuttack calling upon the Petitioner to appear before him on 19th January 2017 for the purposes of re-computation of tax for the year 2002- 03 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation on the contrary issued by the State Government had no legal sanctity. 10. Following the above decision of this Court, the Tribunal passed an order dated 29th November 2007 and directed the Department to re-compute the tax liability by allowing set off of entry tax from the tax due and thereafter levy surcharge on it. Accordingly, a re-computation order was passed by the STO on 25th July 2008 and the excess amount to the tune of ₹ 29,57,232/- was refunded to the Petitioner. The above order of the Tribunal was for the years 2000-01 and 2001-02. 11. It may be noted here that the decision of this Court in Bajaj Auto (HC-1) (supra) case was challenged by the Department before the Supreme Court of India. In its judgment dated 28th October 2016 in Commissioner of Commercial Taxes v. Bajaj Auto Ltd. AIR 2016 SC 5014 [hereafter Bajaj Auto (SC)], the Supreme Court reversed the order of this Court and held that the surcharge under Section 5-A of the OST Act is to be levied before deducting the amount of entry tax paid by the dealer. As a result of the above judgment of the Supreme Court, the Department began issuing orders of the re-computation of the tax, surcharge a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OST Act corresponding to Section 49-A of the Orissa Valued Added Tax Act, 2004 (OVAT Act) to enable the Department to issue a re-computation order to revive an enforceable demand. Having failed to invoke the statutory remedy available to it in law, the Department cannot take advantage of the subsequent judgment of the Supreme Court. Reliance is placed on the decision in Deputy Commissioner of Income Tax v. Simplex Concretes Piles (India) Ltd. (2013) 11 SCC 373. Reliance is also placed on the decision dated 12th January 2021 of the Tripura High Court in WP (C) No. 465 of 2020 (Tripura Ispat v. Union of India). 16. On the other hand, Mr. Mishra, learned Additional Standing Counsel for the Department has placed reliance on this Court s order dated 31st March 2021 in W.P.(C) No.3804 of 2018 (M/s. Bajaj Auto Ltd. v. The Deputy Commissioner of Sales Tax, Sambalpur-II Circle [hereafter Bajaj Auto (HC-2)] and on the decision in M/s Shenoy Co v. Commercial Tax Officer, Circle II, Banagalore (1985) 2 SCC 512. He submitted that the present case was different from the facts involved in the decision dated 26th August 2021 of this Court in W.P.(C) No.14486 of 2021 (M/s. Neelam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecause the Petitioner was a party to that judgment. The decision in its writ petition by this Court in Bajaj Auto (HC-1) was common to the Petitioner and Bajaj Auto Ltd. and was the subject matter of the challenge before the Supreme Court. 20. The very same submissions that have been advanced before this Court by Mr. Sahoo have been negatived by this Court in Bajaj Auto (HC-2) with the following reasoning: 7. This Court is unable to agree with the above submission. The very basis of the subsequent orders of this Court for the AYs in question, in favour of the assessee, was the judgment dated 5th January 2007 of this Court. In other words, there was no other basis for accepting the plea of the assessee for the AYs in question. That very basis of the orders passed by this Court has been rendered non-existent by the judgment of the Supreme Court in Bajaj Auto Ltd. (supra) setting aside the order dated 5th January, 2007 of this Court. The aforementioned declaration of the law by the Supreme Court is binding on all the authorities in terms of Article 141 of the Constitution. Consequently, the impugned orders that have been passed, re-computing the tax payable to give effect to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orporation of India v. State of Haryana, (2000) 119 STC 7 (SC), that such interest is payable only for the period subsequent to the judgment of the Supreme Court and not prior thereto. Consequently, the impugned demand notices are modified only to the extent that the interest on the differential tax amount will be payable by the Petitioner for the period subsequent to the judgment of the Supreme Court i.e. 28th October 2016, till the date of payment. 25. This Court accordingly upholds the impugned re-computation orders of the Department as well as the notice dated 11th January, 2017 except to the extent of interest on surcharge. A direction is therefore issued to the DCST to issue fresh orders re-computing the amount payable on the basis of the limited modification as regards interest, not later than 1st November, 2021. It is made clear that it would not be open to the Petitioner to again challenge the said order as long there is in conformity with the directions issued in the present judgment of this Court. 26. The writ petitions are accordingly disposed of with no order as to costs. 27. Urgent certified copy of this judgment be granted as per rules. - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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