NIKUNJA KISHORE NAIK Vs. COMMISSIONER OF COMMERCIAL TAXES

JUDGEMENT

(1.) This is the second journey of the petitioner to this Court. In an earlier writ application bearing OJC No. 2312 of 1992, it was directed that the refund application filed by the petitioner was to be disposed of within three months from the date of receipt of our order. The said order was passed on 27 -3 -1992. By impugned order dated 20 -10 -1992 vide Annexure -1, it was intimated to the petitioner that refund application ' was not entertained as the Commissioner of Commercial Taxes, opp. party No. 1 had directed withholding claim of refund Under Section 14 -C of the Orissa Sales Tax Act, 1947 (in short, the 'Act'). Notice, Under Section 12 -B of the Act have also been issued to the petitioner for the period relating to which refund was claimed. It is the stand of the petitioner that Section 14 -D has no application to the facts of the present case and initiation of proceeding Under Section 12 -B of the Act is also illegal.

(2.) LEARNED counsel for the Revenue however, submitted that both actions of the authorities are in conformity with law. -We shall first deal with the question of applicability of Section 14 -D of the Act. The said provision reads as follows : '14 -D. Power to withhold refund in certain cases -Where an order giving rise to a refund is the subject matter of an appeal or further proceeding under this Act, the Commissioner may, if he is of the opinion that the grant of refund is likely to adversely affect the revenue, withhold the refund till such time as he deems proper.' A bare reading of provision makes it clear only in case where an order giving rise to a refund is the subject -matter of an 'appeal or further proceeding under the Act', the Commissioner has option to withhold refund if he is of the opinion that grant of refund is likely to adversely affect the revenue. The expression 'further proceeding' obviously relates to a stage subsequent to appeal. In other words, it encompasses proceedins before the Tribunal or High Court or the Apex Court as prescribed in the Act. They cannot certainly be retatable to any other proceeding. In the in3tant case, admittedly, no appeal or a proceeding of a stage subsequent to appeal is pending. Therefore, exercise of power Under Section 14 -D by the Commissioner is unauthorised.

(3.) COMING to the legality of notices issued Under Section 12(8) of the Act, petitioner may raise non -tenability of the proceeding before the Sales -tax Officer. We express no opinion about that aspect. In view of our conclusion, impugned order (Annexure -1) is indefensible. The refund application be disposed of by the Commissioner within a month from the date of receipt of our order. We make it clear that we have not expressed any opinion about legality of any action which may be taken by the Commissioner under second proviso to Section 14 of the Act. The writ application is disposed of. No costs.