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1989 DIGILAW 219 (ORI)

ASWINI KUMAR SAMAL v. SALES TAX OFFICER

1989-07-25

J.DAS, S.C.MOHAPATRA

body1989
JUDGMENT : S.C. Mohapatra, J. - In this application, Petitioner has sought for directions to the Statutory Authorities under the Orissa Public Demands Recovery Act, 1962 not to recover the certificate dues from him by issue of a writ in the nature of certiorari and mandamus under Article 226 of the Constitution of India. 2. Petitioner was a dealer under the Orissa Sales Tax Act. Sales Tax Officer sent a requisition to the Certificate Officer for realisation of dues as mentioned in the requisition from the Petitioner. Certificate Officer signed a certificate and filed the same. On receipt of notice, Petitioner filed a petition denying liability asserting therein that he has not been served with any demand notice under the Orissa Sales Tax Act and accordingly, proceeding under the Orissa Public Demands Recovery Act is not maintainable. This objection not having been found favour with the certificate officer, Petitioner preferred an appeal unsuccessfully. Thereafter, Petitioner has approached this Court. 3. Records of the certificate proceeding were called for. On examination of the records, we find that the column No. 10 in the certificate has been left blank and in column 6 thereof it has been expressed to be dues in respect of Orissa Sales Tax for the quarters 31-3-1964 to 31-3-1965. 4. In Utkal Distributors Private Ltd. and Anr. v. The State of Orissa and Ors. O.J.C. No. 785/82-D/14.7.1989, decided on 14-7-1989 considering the previous decisions of this Court, it has been held: On reference to the aforesaid decisions, it is clear that recovery of dues under the Act is not a normal process but is extraordinary and accordingly, application of the law must be strictly examined. Since signing of a certificate is ex parte and amount of decree, Certificate Officer is required to be careful before signing the certificate to examine that all the particulars are properly filled in wherefrom the certificate debtor Can get a clear picture of the dues recoverable from him. In case of any deficiency in the certificate which does not give a clear picture, prejudice is caused to the certificate debtor to raise objection on the limited grounds provided for u/s 8 of the Act. Accordingly, recovery under such certificate is not to be allowed. 5. In case of any deficiency in the certificate which does not give a clear picture, prejudice is caused to the certificate debtor to raise objection on the limited grounds provided for u/s 8 of the Act. Accordingly, recovery under such certificate is not to be allowed. 5. Examining the certificate in the light of the afore said principle, it is seen that all the columns as the certificate have not been filled up properly, under the Orissa Sales Tax Act and the Rules thereunder year is financial year consisting of four quarters i.e. 1st April to 30th June, 1st July to 30th September, 1st October to 31st December and 1st January to 31st March. No quarter begins from 31-3-1989. Besides the break up has not been given. It has also not been stated if the amount due is only tax or includes penalty is included the provision of the Orissa Sales Tax Act under which the same is imposed ought to have been mentioned. This is more important when Petitioner asserts that he has not received any assessment order. Accordingly, column 6 not having been properly filled in, recovery of dues on such a certificate ought not to be permitted. 6. After hearing parties, we are satisfied that the defect in the certificate may be on account of ministerial acts. In the circumstance, interest of justice would be best served in case we direct the Certificate Officer to correct the certificate already filed giving full particulars in column 6 and serve a copy of the same on the Petitioner. Thereafter, Petitioner shall get opportunity to file his petition denying liability within the limited scope of Section 8 of the Orissa Public Demands Recovery Act and the proceeding shall continue from that stage. In view of this direction, we have not considered the merits, or other submissions. Since, however, the order of certificate officer and the appellate authority are vacated, the objection of the Petitioner shall be considered on its own merits without being influenced by any observation in the impugned order. 7. The Petitioner is directed to appear before the Certificate Officer on 7th August, 1989 on which date the Certificate Officer shall fix a date for supply of a corrected copy of the certificate to the Petitioner. 8. In the result, the writ application is allowed to the extent indicated above. No costs. 7. The Petitioner is directed to appear before the Certificate Officer on 7th August, 1989 on which date the Certificate Officer shall fix a date for supply of a corrected copy of the certificate to the Petitioner. 8. In the result, the writ application is allowed to the extent indicated above. No costs. Requisites for issue of writ to the Certificate Officer, opposite party No. 2 shall the filed by Monday (31-1-1989) as undertaken. J. Das, J. I agree. Writ application allowed. Final Result : Allowed