M/S. Ghanshyam Misra And Sons (P) vs Commissioner Of Commercial Taxes on 26 March, 2026

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    Orissa High Court

    M/S. Ghanshyam Misra And Sons (P) vs Commissioner Of Commercial Taxes on 26 March, 2026

    Author: Murahari Sri Raman

    Bench: Murahari Sri Raman

                       IN THE HIGH COURT OF ORISSA AT CUTTACK
                                   WP(C) No.7264 of 2026
    
                     M/s. Ghanshyam Misra and Sons (P) ...                Petitioner
                     Ltd.
                                          Mr. Jagabandhu Sahoo, Senior Advocate
                                            assisted by Ms. Kajal Sahoo, Advocate
                                            -Versus-
                     Commissioner of Commercial Taxes, ...          Opposite Parties
                     Odisha and another
                                              Mr. Sunil Mishra, Standing Counsel
                                                for CT & GST Department
    
                                       CORAM:
                           THE HON'BLE THE CHIEF JUSTICE
                                         AND
                     THE HON'BLE MR. JUSTICE MURAHARI SRI RAMAN
    
                                                    ORDER
    
    Order No.                                      26.03.2026
        03.     I.A. No.5598 of 2026
    
    

    1. This Interlocutory Application has been filed after disposal of the
    writ petition bearing W.P.(C) No.7264 of 2026 vide order dated
    16th March, 2026 with the following prayer(s):

    “Under the aforesaid circumstances, it is prayed therefore that this
    Hon’ble Court may be graciously pleased to pass appropriate order
    suitably modifying/clarifying/rectifying the order dated 16.03.2026
    passed by this Hon’ble Court in the end of justice;

    And for this act of kindness, the petitioner shall as in duty bound ever
    pray.”

    2. The writ petition was filed challenging the order dated 16th
    February, 2026 passed by the Commissioner of Sales Tax,
    Odisha, rejecting the petition for stay the recovery of demand
    raised in the assessment framed under Section 9C of the Odisha
    Entry Tax Act, 1999 as confirmed by the Additional
    Page 1 of 9
    Commissioner of Sales Tax (Appeal), Balasore vide order dated
    28th March, 2025 during the pendency of the second appeal
    against the said appellate order before the Odisha Sales Tax
    Tribunal.

    SPONSORED

    3. This Court vide order dated 16th March, 2026 disposed of the said
    writ petition with the following observation (s):

    “7. The assessment order and also the first appeal order
    reveals that though sufficient adjournments were granted
    by the authorities concerned in order to extend
    opportunities to furnish documents/evidence in support of
    the claim of the petitioner, he failed to produce such
    requisite documents for the purpose of verification or
    examination of veracity of such claims made. The
    Appellate Authority lucidly stated that the dealer did not
    produce any supporting document neither before the audit
    team nor before the Appellate Authority. Such being the
    position, this Court does not find any plausible
    explanation offered by the petitioner nor before the
    Commissioner nor this Court. Except saying that the
    Commissioner of Sales Tax on appreciating pre-deposit
    made by different dealers as per sub-section (4) of
    Section 16 during the pendency of the first appeal
    granted stay of realization of balance demanded tax,
    nothing is argued as to why the petitioner-dealer
    defaulted in producing relevant material before the audit
    team, the assessing authority and the appellate authority.
    This Court is conscious of the fact that the interim orders
    passed during pendency of second appeal are not
    binding. Sub-section (7) of Section 17 of the OET Act vests
    discretion in the Commissioner of Sales Tax to stay the
    realization of outstanding demanded tax as a result of
    disposal of appeal under Section 16(7) before the learned
    Odisha Sales Tax Tribunal. Having noticed that the dealer
    failed produce material evidence before the audit team, the
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    assessing authority as also the appellate authority, the
    Commissioner of Sales Tax declined to grant stay
    realization of the balance demanded tax.

    8. Be that as it may, taking into consideration the submission
    of the learned Senior Advocate that the petitioner has
    deposited 20% of the tax demanded by virtue of the
    assessment order framed under Section 9C of the OET Act
    during the pendency of the first appeal in terms of sub-
    section (4) of Section 16 of the OET Act, in order to
    maintain the balance of convenience this Court directs the
    petitioner to deposit 30% of the balance tax as demanded
    in the assessment on or before 31st March, 2026. In the
    event of such deposit being made within the period
    stipulated, no coercive measure shall be taken against the
    petitioner for recovery of rest of the demand raised in the
    assessment order dated 21st November, 2015 with respect
    to the tax periods from 01.07.2012 to 31.03.2014 during
    the pendency of the second appeal before the learned
    Odisha Sales Tax Tribunal. It is made clear that if the
    petitioner fails to comply with the aforesaid direction, the
    authority concerned is at liberty to carry out the direction
    of the Commissioner of Sales Tax vide order dated 13th
    February, 2026. Needless to observe that the hearing of
    second appeal shall be expedited.”

    4. Learned Senior Advocate appearing for the petitioner would
    submit that perverse finding of the fact recorded by the appellate
    authority having been relied by this Court while disposing of said
    writ petition, order dated 16th March, 2026 requires modification.

    4.1. He referred to paragraph-6 of the Interlocutory Application,
    which reads as under:

    “6. It is further submitted that there was no laches on the part
    of the petitioner in complying with every notice during the
    process of adjudication. Furthermore, it is humbly
    Page 3 of 9
    submitted that the findings of the learned Additional
    Commissioner (Appeal), Balasore, contain inherent
    contradictions where the final observation stand in direct
    conflict with the facts recorded by the same authority. It
    is submitted that such a patent inconsistency in the
    underlying record strikes at the root of the matter and the
    erroneous and contradicting observation made by the
    Additional Commissioner (Appeal) ought not to have been
    considered by this Hon’ble Court while passing the order
    dated 16.03.2026.”

    4.2. As if the order passed in the writ petition, which was filed
    challenging the interlocutory order passed by the Commissioner
    of Sales Tax rejecting the prayer to grant stay of realization of
    demand during the pendency of the second appeal before the
    learned Sales Tax Tribunal, may have influence on merit of the
    second appeal pending before the Odisha Sales Tax Tribunal, this
    Interlocutory Application has been taken out seeking
    modification/clarification.

    5. Sri Sunil Mishra, learned Standing Counsel opposing
    maintainability of such interlocutory application after disposal of
    writ petition, urged that granting full stay or conditional order is
    the discretion of the authority or the Court. This Court having
    considered the facts as settled by the Appellate Authority
    directed to deposit certain percentage of demanded tax as a
    condition for restraining the authority from realizing full
    demanded tax during pendency of second appeal. Since the fact
    returned by the Appellate Authority has not yet been varied by
    the learned Sales Tax Tribunal it could not be said that any
    observation made by this Court in the interim can have any
    repercussion on the merit of the second appeal.

    Page 4 of 9

    6. Heard learned Senior Advocate appearing for the petitioner and
    learned Standing Counsel appearing for the CT & GST
    Department.

    7. This Court finds the apprehension of the learned Senior
    Advocate appearing for the petitioner is without comprehension.
    At paragraph-7 of the order dated 16th March, 2026 this Court
    unequivocally made observation that “this Court is conscious of
    the fact that the interim orders passed during pendency of second
    appeal are not binding.”

    7.1. It is trite that any observation made in order to consider
    whether the petitioner is entitled to grant of stay of
    realization of demanded tax during the pendency of second
    appeal is interlocutory in nature. Such observation was
    necessary for weighing the balance of convenience and such
    tentative observation is made in order to appreciate prima
    facie case.

    7.2. The learned Senior Advocate appearing for the petitioner
    confronted this Court with an observation made in the appellate
    order that in fact the Advocate for the petitioner appeared before
    the Appellate Authority on 20th February, 2025 but the Appellate
    Authority under a mistaken notion while passing the final order
    dated 16th February, 2026 observed as if “the dealer-appellant
    also fail to appear before this forum to defend their case.”

    7.3. Be that as it may, the finding of fact/observation made, if any, by
    the Appellate Authority is subject matter of dispute for
    adjudication before the learned Odisha Sales Tax Tribunal in
    Page 5 of 9
    second appeal. The observations made by this Court in the order
    dated 16th March, 2026 was based on such findings returned by
    the appellate authority, which has not yet been varied/interfered
    with by any competent Court or authority established under the
    law.

    7.4. Without delving deep into any controversial factual aspect, this
    Court feels it apposite to observe that the Hon’ble Supreme Court
    of India on many occasions deprecated the practice of filing
    petition for clarification/modification after final disposal of the
    main petition in the garb of review. Suffice it to refer State of
    Haryana Vrs. M.P. Mohla, (2006) Supp.8 SCR 926, wherein it
    has been expounded that “an application for clarification cannot
    be taken recourse to, to achieve the result of a review
    application. What cannot be done directly, cannot be done
    indirectly [Ram Chandra Singh Vrs. Savitri Devi and others,
    (2004) 12 SCC 713].”

    7.5. It may not be out of place to quote here from Ajay Kumar Jain
    vs. State of Uttar Pradesh and another
    , (2024) 12 SCR 478:

    “11. This Miscellaneous Application on the face of it is not
    maintainable in law.

    12. It is high time that this Court says something on the
    practice of the litigants filing miscellaneous applications
    in disposed of proceedings and that too after a period of 5
    years, 7 years, 10 years.

    13. These miscellaneous applications which are being filed on
    daily basis have something to do with fresh cause of action
    that might have arisen with a very remote connection with
    the main proceedings.

    Page 6 of 9

    14. No miscellaneous application is maintainable in a writ
    petition to revive proceedings in respect of subsequent
    events.

    15. In fact, the Court has no jurisdiction to entertain such
    application as no proceedings could be said to be pending
    before it. When proceedings stand terminated by final
    disposal of the writ petition be it under Article 32 of the
    Constitution or Article 226 of the Constitution before the
    High Court, it is not open to the Court to re-open the
    proceedings by means of a miscellaneous application in
    respect of a matter which provided a fresh cause of
    action. If this principle is not followed, there would be
    confusion and chaos and the finality of the proceedings
    would cease to have any meaning.

    16. In the recent past, a co-ordinate bench of this Court
    observed the following in “Jaipur Vidyut Vitran Nigam
    Ltd. and Others Vrs. Adani Power Rajasthan Ltd. and
    Another reported in 2024 SCC OnLine SC 313”:

    “We felt it necessary to examine the question about
    maintainability of the present application as we are of the
    view that it was necessary to spell out the position of law
    as to when such post-disposal miscellaneous applications
    can be entertained after a matter is disposed of. This
    Court has become functus officio and does not retain
    jurisdiction to entertain an application after the appeal
    was disposed of by the judgment of a three-Judge Bench
    of this Court on 31.08.2020 through a course beyond that
    specified in the statute. This is not an application for
    correcting any clerical or arithmetical error. Neither it is
    an application for extension of time. A post disposal
    application for modification and clarification of the order
    of disposal shall lie only in rare cases, where the order
    passed by this Court is executory in nature and the
    directions of the Court may become impossible to be
    implemented because of subsequent events or
    Page 7 of 9
    developments. The factual background of this Application
    does not fit into that description.”

    17. Thus, this Court made it abundantly clear that a
    miscellaneous application filed in a disposed of
    proceedings would be maintainable only for the purpose of
    correcting any clerical or arithmetical error. The Court
    further clarified that a post disposal application for
    modification Thus, this Court made it abundantly clear
    that a miscellaneous application filed in a disposed of
    proceedings would be maintainable only for the purpose of
    correcting any clerical or arithmetical error. The Court
    further clarified that a post disposal application for
    modification or clarification of the order would lie only in
    rare cases where the order passed by this Court is
    executory in nature and the directions of the Court may
    have become impossible to be implemented because of
    subsequent events or developments..

    18. The Registry shall not circulate any miscellaneous
    application filed in a disposed of proceedings unless and
    until there is a specific averment on oath that the filing of
    the miscellaneous application has been necessitated as the
    order passed in the main proceedings being executory in
    nature and have become impossible to be implemented
    because of subsequent events or developments.

    19. The Registry shall insist from every applicant who intends
    to file any miscellaneous application in a disposed of
    proceedings for such a declaration as above on solemn
    affirmation.”

    7.6. The interlocutory application which is pressed by the learned
    Senior Advocate for the petitioner apparently beseeches revisit of
    the final order passed in the writ petition. This Court is functus
    officio to deal with such interlocutory application seeking
    modification in the garb of review. Doing so by allowing the

    Page 8 of 9
    application would be to change the final result of the order dated
    16.03.2026 passed in the writ petition. Such a recourse is
    impermissible in law and such practice is deprecated by the
    Hon’ble Supreme Court of India on very many occasions.

    8. In view of the aforesaid clear enunciation of legal position by the
    Hon’ble Supreme Court of India, there is no ambiguity in mind
    that the nature of averments and prayer(s) made in the
    Interlocutory Application after disposal of writ petition is not
    maintainable. It appears that in order to seek review of order
    dated 16th March, 2026 passed in WP(C) No.7264 of 2026, this
    Interlocutory Application has been filed with the title “an
    application for modification/rectification on of order dated
    16.03.2026 passed by this Hon’ble Court in WP(C) No.7264 of
    2026”. This Court does not find any error apparent on the face of
    the record. Hence the Interlocutory Application, being not
    maintainable, is hereby dismissed.

    9. With the aforesaid observation and direction, the Interlocutory
    Application stands disposed of.

    (Harish Tandon)
    Chief Justice

    (M.S. Raman)
    Judge
    MRS/Laxmikant
    Signature Not Verified
    Digitally Signed
    Signed by: LAXMIKANT MOHAPATRA
    Designation: SENIOR STENOGRAPHER
    Reason: Authentication
    Location: High Court of Orissa, Cuttack
    Date: 30-Mar-2026 19:28:55

    Page 9 of 9



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