TMI Blog1979 (7) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... o and thereby the petitioner has complied with their obligations of resale in Orissa? (2) Whether, on the facts and in the circumstances of the case, the petitioner's turnover of purchases made by giving declaration is not liable to be added to the taxable turnover for violating the provisions of section 5(2)(A)(a)(ii) of the Orissa Sales Tax Act when he sold these very goods subsequently in the course of inter-State trade? (3) Whether, on the facts and in the circumstances of the case, the petitioner's purchase of iron and steel materials by giving declarations for resale in Orissa and his subsequent sales in the course of inter-State trade are two distinct transactions or one transaction and, if they are distinct, whether the subseque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter-State sale. The three questions, which have been posed for opinion, are indeed one, namely: "Whether, on the facts and in the circumstances of the case the assessee would have liability to pay tax on that part of the turnover which had been purchased on the basis of declarations but had been made the subject-matter of inter-State sales?" Accordingly, in lieu of the three questions framed by the Member, Additional Sales Tax Tribunal, we substitute the aforesaid question. 3.. Before we proceed to examine that question, we must make it clear that, in regard to the branch transfer, the provisions of the Central Sales Tax Act would have no application because even on the assessee's own showing there had been no inter-State sales; when th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exclude from the gross turnover the sales to a registered dealer of goods specified in the purchasing dealer's certificate of registration as being intended for resale by him in Orissa. The proviso occurring in section 5(2)(A)(a)(ii) requires the sale price of goods used by the purchasing dealer for the purposes other than those mentioned in his certificate of registration to be included in his taxable turnover. The assessee before us had purchased biri (in the instant case, scrap iron) from registered dealers and had furnished declarations. It is not disputed that it was entitled to make such purchases free of tax on furnishing declarations. Its declarations contemplated that it would resell the goods so purchased in Orissa. As we have al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unless the mistake occurring in the Tribunal's decision on the question of law is corrected. We would, therefore, answer the question by saying: If the sales which are claimed to be inter-State actually took place within the State of Orissa but in view of the provisions of the Central Act are deemed to be the first sales under that Act, the principle indicated in the Joharimal Gajananda's case[1976] 37 S.T.C. 157. has full application and the proviso to section 5(2)(A)(a)(ii) of the Orissa Act would not be applicable. Since there has been no clear determination of the factual aspect, the Member, Additional Sales Tax Tribunal, should require the assessing officer to go into this aspect also, while refraining the assessment. There will be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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