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2008 (3) TMI 638 - HC - VAT and Sales TaxWhether the non-exhaustion of statutory remedy can be a bar in this case for this court to exercise its jurisdiction under article 226 of the Constitution? Whether a dealer is liable to pay tax on the ground that he admitted to pay tax on a certain transaction even if the said transaction is not taxable within the provisions of the OST Act? Whether the lease rental received by the petitioner from IMFA is exigible to tax under the provisions of the OST Act? Held that:- It is not possible for a statutory Tribunal to read down the provision of an Act in order to save it from being struck down. A statutory Tribunal is to give a literal interpretation of the statute. That is why in this case the writ petition is maintainable even without the exhaustion of the statutory remedy. Coming to question No. (ii), this court holds that there is no estoppel against statute. If a person is not liable, within the four corners of statute, to pay tax on any transaction, he cannot be assessed to tax merely because he previously admitted his liability on a wrong notion. Liability to pay tax has always to be imposed by law: it cannot be imposed on admission. Deemed sales including leases were to be treated exactly on the same footing as ordinary sales and were subjected to the same restrictions contained in article 286 of the Constitution of India. Neither ordinary sale nor deemed sale could be subjected to tax by a particular State if such sale or deemed sale was either in the course of inter-State trade or was effected outside the State. Therefore, the Explanation to section 2(g)(iv)(a)(i) of the Orissa Sales Tax Act which stipulated that the sale or purchase of goods shall be deemed to take place inside the State if the goods are within the State at the relevant time would have to be read down to the effect that it would not be applicable to a deemed sale which was an outside-State sale or an inter-State sale or a sale in course of import of the goods into or export of the goods outside India. For the reasons aforesaid, the order of assessment dated March 31, 2004 for the assessment year 2000-2001 challenged in W.P. (C) No. 9062 of 2004, order of assessment dated February 25, 2005 for the assessment year 2001-2002 challenged in W.P. (C) No. 4716 of 2005 and orders of assessment dated March 20, 2006 for the assessment years 2002-2003 and 2003-2004 challenged in W.P. (C) Nos. 10544 and 10550 of 2006 are all quashed.
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