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TMI Blog2021 (12) TMI 577X X X X Extracts X X X X X X X X Extracts X X X X ..... espondingly to Rule 50 of the OVAT Rules are either merely clarificatory or retrospective. The picture that emerges is that if the self-assessment under Section 39 of the OVAT Act for tax periods prior to 1st October, 2015 are not accepted either by a formal communication or an acknowledgment by the Department, then such assessment cannot be sought to be re-opened under Section 43 (1) of the OVAT Act and further subject to the fulfillment of other requirements of that provision as it stood prior to 1st October, 2015. The reopening of the assessment sought to be made in the present case under Section 43 (1) of the OVAT Act is held to be bad in law - Revision petition disposed off. - S. MURALIDHAR CHIEF JUSTICE AND B.P. ROUTRAY, JUDGE Advocates, appeared in this case: For Petitioner : Mr. Jagabandhu Sahoo Senior Advocate For Opposite Party: Mr. Sunil Mishra Additional Standing Counsel 1. This revision petition arises out of the order dated 5th April, 2016 passed by the Odisha Sales Tax Tribunal (Tribunal), Cuttack dismissing the Petitioner s/Assessee s S.A.No.64 (VAT) of 201415. By the said order, the Tribunal affirmed the order passed on 3rd February, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 SC 766; the Full Bench of this Court in M/s. Jaynarayan Kedarnath v. Sales Tax Officer, Cuttack-I West Circle (1988) 68 STC 25 and Balaji Tobacco Stores v. The Sales Tax Officer (decision dated 18th March, 2015 of this Court in W.P.(C) No.31251 of 2011). By referring to Sections 39, 40, 42, 43 and 44 of the OVAT Act, 2004 and the amendments made thereto with effect from 1st October, 2015 together with the pre and post amended Rules and in particular Rule 50, Mr. Sahoo submitted that during the relevant period when the reassessment proceedings commenced it was the unamended Section 43 that was to apply. It is submitted that without there actually being an assessment under Section 39 of the OVAT Act, the provisions of Section 43 (1) of the OVAT Act could not have been invoked for the period prior to 1st October, 2015. 9. On the other hand, Mr. Sunil Mishra, learned Additional Standing Counsel for the Opposite Party (Department) submitted that the first level change was brought about in the OVAT Act in 2010 when all the returns had to be filed only online. Therefore, the actual acceptance of the return in physical mode was no longer possible. If the return was defective, noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ject to adjustment of arithmetical errors. 12. Now turning to Section 43(1) the changes again are stark. Section 43(1) after 1.10.2015 Section 43(1) prior to 1.10.2015 Where, the assessing authority, on the basis of any information in his possession which indicates that the whole or any part of the turnover of the dealer in respect of any tax period or tax periods has- (a) escaped assessment; or (b) been under-assessed; or (c) been assessed at a rate lower than the rate at which it is assessable; or that the dealer has been allowed- (i) wrongly any deduction from his turnover; or (ii) input tax credit, to which he is not eligible, the assessing authority may serve a notice on the dealer in such form and manner as may be prescribed and after giving the dealer a reasonable opportunity of being heard and after making such enquiry as he deems necessary, proceed to assess to the best of his judgment the amount of tax due from the dealer. Where, after a dealer is assessed under Section 39, 40 [42 or 44] for any tax period, the assessing authority, on the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dealer will be deemed to have been self assessed on the basis of before the returns submitted by him such an observation is at the highest recommendatory in nature. It cannot be elevated to the status of law. 17. A perusal of the decision of this Court in Nilachal Ispat Nigam Ltd. (supra) reveals that it was in the context of the Orissa Entry Tax Act (OET Act). Secondly, this Court had no occasion in the said decision to discuss the effect of more or less similar amendments effected to the provisions of the OET Act which were brought into effect from 1st October, 2015. This is despite the fact that the decision is dated 7th December, 2016. The amendments did bring about a significant change to the OET Act and therefore had a direct bearing on the issues discussed in the said decision. Consequently, this Court finds that the decision in Nilachal Ispat Nigam Ltd. is per in curiam inasmuch as it fails to discuss the amended provisions of the OET Act which have a direct bearing on the issues adjudicated by this Court. 18. In Balaji Tobaco Store (supra) this Court accepted the plea of the Petitioner that unless there was a completion of the assessment of the initial state, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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