OSCAR Vs. SALES TAX OFFICER ASSESSMENT UNIT BARBIL

JUDGEMENT

(1.) THE petitioner's application for refund having been rejected by the Sales Tax Officer by order dated 4th December, 1987 (annexure-4) and the said order having been confirmed by the Additional Commissioner as per his order dated 1st July, 1988 (annexure-5) as corrected by order dated 11th August, 1988 passed by him under annexure-6, the petitioner has approached this Court under article 226 of the Constitution.

(2.) THE petitioner is an assessee under the Orissa Sales Tax Act, 1947 (hereinafter referred to as the "act") and is a registered dealer. For the assessment year 1986-87, assessment under section 12 of the Act was made by the assessing officer, namely, the Sales Tax Officer, Barbil. The said assessing officer by his order of assessment dated 10th June, 1987 came to hold that excess amount of Rs. 2,194 paid by the dealer is refundable to him as per law. The order of assessment has been annexed as annexure-1. The petitioner then filed an application for refund under section 14 of the Act which has been annexed as annexure-2. The Sales Tax Officer issued a notice to the petitioner under section 12 (5) and 12 (8) of the Act on a finding that he has reason to believe that the turnover of sales for the year ending 1986-87 on which tax is payable under the Act has escaped assessment. The petitioner was called upon to be present in his office on 6th January, 1988 or to cause to produce the accounts and documents specified therein and to show cause why in addition to the amount of tax that may be assessed, a penalty not exceeding one and a half times of the said amount should not be imposed under sub-sections (5) and (8) of section 12 of the Act. This notice is dated 4th December, 1987 and has been annexed as annexure-3. On the very same day the petitioner's application for refund was also rejected by the same authority on the ground that since proceeding for reassessment under section 12 (8) has already been started, the application for refund cannot be allowed. This order has been annexed as annexure-4. The revision petition of the petitioner against the same to the Commissioner of Commercial Taxes was rejected by order dated 1st July, 1988 (annexure-5) and modified by order dated 11th August, 1988 (annexure-6 ).

(3.) MR . Ray, learned counsel for the petitioner, contends that a notice under section 12 (8) of the Act is merely an initiation of a proceeding for reassessment and is not an order for reassessment within the meaning of the second proviso to section 14 of the Act and therefore, the said second proviso has no application on mere issuance of a notice under section 12 (8 ). The learned counsel further contends that the power of the Commissioner under section 14-D would become redundant if issuance of a notice by the assessing officer is construed to be an order for reassessment and further the entitlement of an assessee to get the refund pursuant to an order of assessment becomes nugatory on the mere ipse dixit of the assessing officer who may issue notice under section 12 (8) of the Act. According to the learned counsel that could not have been the intention of the second proviso to section 14 and even though the plain meaning of the second proviso may confer that meaning, the court should, at the cost of doing violence of the language, interpret the same in a manner which would subserve ends of justice.