Kedar Gouri Rice Mill Vs. State of Orissa and ors. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 2. it has been admitted by the learned counsel for the revenue that the sales tax officer is not 'the assessing authority of the range' as required under rule 34(12)(b). we are satisfied on a scrutiny of the impugned order of assessment under annexure 2, that since it has been passed by the sales tax officer and not by the assessing authority of the range, the order of assessment cannot withstand judicial scrutiny and is held to be without jurisdiction not being in conformity with rule 34(12)(b). accordingly, the order impugned, i.order1. heard mr. j. sahu, learned counsel for the petitioner and mr. dalai, learned additional standing counsel for the revenue.2. the petitioner, who is a registered dealer under the orissa value added tax act, 2004 and has been granted a tin number, challenged the order of assessment dated april 21, 2007 passed by the sales tax officer, bhanjanagar circle, bhanjanagar, ward a, opposite party no. 2, under the orissa value added tax act, 2004 vide annexure 2 on the following grounds:that the provisions of section 2(4) of the ovat act defining the expression 'assessing authority' being relevant the same are reproduced below:section 2. (4) 'assessing authority' means any officer appointed under sub-section (2) of section 3 who is authorized by the commissioner to make assessment under this act.the provisions of rule 34(8) and rule 34(12) of the ovat rules, 2005 being relevant the same are reproduced below:rule 34. (8) the return under sub-rule (1) shall be filed in the range and the return under sub-rule (6) shall be filed in the circle, where the dealer is registered:provided that for the convenience of the dealer a return under sub-rule (1) may be furnished to assessment unit or circle under whose jurisdiction the place of business of the dealer is situated, and the concerned assessment unit or circle, on receipt of such return, and after preliminary processing shall submit it to the range.(12) for the purpose of this rule, the assessing authority shall mean:(a) the assessing authority of the circle in respect of the dealers, who have been granted registration under sub-rule (1) of rule 18 and assigned with srin under sub-rule (4) of rule 19.(b) the assessing authority of the range in respect of dealers who have been granted registration under sub-rule (1) of rule 18 and assigned with tin under sub-rule (1) of rule 19.a cumulative reading of the aforesaid provisions therefore speaks in no uncertain term that the assessment in respect of the present petitioner can only be done by the assessing authority of the range as per rule 34(12)(b) of the ovat rules and not by the sales tax officer, cuttack ii circle, sriram nagar, badambadi, cuttack (o. p. 2). therefore, the order dated january 5, 2007 passed by the said opposite party no. 2 is without jurisdiction and is accordingly liable to be quashed.3. it would be most relevant to take note of rule 34(12)(b) of the orissa value added tax rules, 2005 which is reproduced as under:(12) for the purpose of this rule, the assessing authority shall mean:(a) ...(b) the assessing authority of the range in respect of dealers, who have been granted registration under sub-rule (1) of rule 18 and assigned with tin under sub-rule (1) of rule 19.4. in view of rule 34(12)(b) of the ovat rules, 2005 as noted hereinabove it is clear that the dealers who have been granted registration under the ovat act/rules and have been assigned with tin numbers, in terms of the aforesaid rule, can only be assessed by the 'assessing authority of the range'. annexure 2 is the impugned order of assessment, which has been admittedly passed by the sales tax officer, bhanjanagar circle, bhanjanagar, ward a opposite party no. 2. it has been admitted by the learned counsel for the revenue that the sales tax officer is not 'the assessing authority of the range' as required under rule 34(12)(b). we are satisfied on a scrutiny of the impugned order of assessment under annexure 2, that since it has been passed by the sales tax officer and not by the assessing authority of the range, the order of assessment cannot withstand judicial scrutiny and is held to be without jurisdiction not being in conformity with rule 34(12)(b). accordingly, the order impugned, i.e., the assessment order vide annexure 2 is set aside.5. let the petitioner appear before the assistant commissioner of sales tax, cuttack ii range, sriram nagar, badambadi, cuttack, opposite party no. 3 on june 10, 2009. on this appearance, opposite party no. 3 may serve a statutory notice on him and proceed with the matter in accordance with law. the sales tax officer, bhanjanagar circle, bhanjanagar, ward a, opposite party no. 2 is directed to transmit the records of the assessee to opposite party no. 3.6. the writ petition is accordingly disposed of.7. a free copy of this order be handed over to the learned counsel for the revenue for due compliance.8. issue urgent certified copy as per rules.

Judgment:
ORDER

1. Heard Mr. J. Sahu, learned Counsel for the petitioner and Mr. Dalai, learned Additional Standing Counsel for the Revenue.

2. The petitioner, who is a registered dealer under the Orissa Value Added Tax Act, 2004 and has been granted a TIN number, challenged the order of assessment dated April 21, 2007 passed by the Sales Tax Officer, Bhanjanagar Circle, Bhanjanagar, Ward A, opposite party No. 2, under the Orissa Value Added Tax Act, 2004 vide annexure 2 on the following grounds:

That the provisions of Section 2(4) of the OVAT Act defining the expression 'assessing authority' being relevant the same are reproduced below:

Section 2. (4) 'assessing authority' means any officer appointed under Sub-section (2) of Section 3 who is authorized by the Commissioner to make assessment under this Act.

The provisions of Rule 34(8) and Rule 34(12) of the OVAT Rules, 2005 being relevant the same are reproduced below:

Rule 34. (8) The return under Sub-rule (1) shall be filed in the range and the return under Sub-rule (6) shall be filed in the circle, where the dealer is registered:

Provided that for the convenience of the dealer a return under Sub-rule (1) may be furnished to assessment unit or circle under whose jurisdiction the place of business of the dealer is situated, and the concerned assessment unit or circle, on receipt of such return, and after preliminary processing shall submit it to the range.

(12) For the purpose of this rule, the assessing authority shall mean:

(a) the assessing authority of the circle in respect of the dealers, who have been granted registration under Sub-rule (1) of Rule 18 and assigned with SRIN under Sub-rule (4) of Rule 19.

(b) the assessing authority of the range in respect of dealers who have been granted registration under Sub-rule (1) of Rule 18 and assigned with TIN under Sub-rule (1) of Rule 19.

A cumulative reading of the aforesaid provisions therefore speaks in no uncertain term that the assessment in respect of the present petitioner can only be done by the assessing authority of the range as per Rule 34(12)(b) of the OVAT Rules and not by the Sales Tax Officer, Cuttack II Circle, Sriram Nagar, Badambadi, Cuttack (o. p. 2). Therefore, the order dated January 5, 2007 passed by the said opposite party No. 2 is without jurisdiction and is accordingly liable to be quashed.

3. It would be most relevant to take note of Rule 34(12)(b) of the Orissa Value Added Tax Rules, 2005 which is reproduced as under:

(12) For the purpose of this rule, the assessing authority shall mean:

(a) ...

(b) the assessing authority of the range in respect of dealers, who have been granted registration under Sub-rule (1) of Rule 18 and assigned with TIN under Sub-rule (1) of Rule 19.

4. In view of Rule 34(12)(b) of the OVAT Rules, 2005 as noted hereinabove it is clear that the dealers who have been granted registration under the OVAT Act/Rules and have been assigned with TIN numbers, in terms of the aforesaid rule, can only be assessed by the 'assessing authority of the range'. Annexure 2 is the impugned order of assessment, which has been admittedly passed by the Sales Tax Officer, Bhanjanagar Circle, Bhanjanagar, Ward A opposite party No. 2. It has been admitted by the learned Counsel for the Revenue that the Sales Tax Officer is not 'the assessing authority of the range' as required under Rule 34(12)(b). We are satisfied on a scrutiny of the impugned order of assessment under annexure 2, that since it has been passed by the Sales Tax Officer and not by the assessing authority of the range, the order of assessment cannot withstand judicial scrutiny and is held to be without jurisdiction not being in conformity with Rule 34(12)(b). Accordingly, the order impugned, i.e., the assessment order vide annexure 2 is set aside.

5. Let the petitioner appear before the Assistant Commissioner of Sales Tax, Cuttack II Range, Sriram Nagar, Badambadi, Cuttack, opposite party No. 3 on June 10, 2009. On this appearance, opposite party No. 3 may serve a statutory notice on him and proceed with the matter in accordance with law. The Sales Tax Officer, Bhanjanagar Circle, Bhanjanagar, Ward A, opposite party No. 2 is directed to transmit the records of the assessee to opposite party No. 3.

6. The writ petition is accordingly disposed of.

7. A free copy of this order be handed over to the learned Counsel for the Revenue for due compliance.

8. Issue urgent certified copy as per rules.