STATE OF ORISSA AND OTHERS Vs. JAYKRUSHNA BRAHMACHARI

JUDGEMENT

(1.) State of Orissa and its functionaries are the appellants against a reversing judgment.

(2.) The plaintiff-respondent instituted the suit for declaration that the orders passed by the Commercial Tax Officer, Puri, defendant no.3 demanding a sum of Rs.63, 119.42 towards arrear tax and Rs.31, 569.71 as penalty are illegal, the said amount cannot be recovered in Certificate Proceeding under the Orissa Public Demands Recovery Act ("O.P.D.R. Act") and permanent injunction. The case of the plaintiff is that he is the registered dealer in petrol, diesel and other lubricants. He is liable to pay tax under the Orissa Motor Spirit (Taxation on Sales) Act, 1946 ("the Act") . The Commercial Tax Officer, defendant no.3 by its order dated 21.11.1974, 31.3.1977, 30.4.1977, 17.7.1978 and 17.4.1979 imposed penalty without issuing prior notice under Section 3(2) of the Act. Thereafter Certificate Case was initiated by defendant no.2 under O.P.D.R. Act to realize the same. Though he challenged the liability of tax and penalty, but no relief was granted to him. The Certificate Officer has no power to adjudicate the matter. The order is an infraction of natural justice. With this factual scenario, he instituted the suit.

(3.) The defendants filed written statement stating, inter alia, that the plaintiff had submitted three returns for the months of March and April, May to August and September to November, 1977. He is liable to pay the admitted taxes under the Act. The plaintiff did not pay the arrear tax. The action taken by defendant no.3 by imposing penalty on the plaintiff is legal and valid. The suit for permanent injunction is not maintainable. The suit is barred under Section 9 C.P.C.