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2013 (4) TMI 199 - HC - VAT and Sales TaxArrangement for storage of Oil - Inter State Sale or Not under Central Sales Tax (CST) - reassessment - change of opinion - transfers of HSD and SKO in question from the Lighterage Terminal at Paradeep to outside the State, i.e., Haldia First Factual aspect is regarding whether the the completed assessment has been reopened by mere change of opinion - Held that:- The reassessment proceedings initiated for the self-same year cannot be said to be without jurisdiction on the ground of change of opinion unless and until it is established that the turnover brought to tax in the reassessment was subject matter of earlier assessment and no tax was levied by the assessing officer by taking a particular view. Therefore, the first ground of challenge that the completed assessment has been reopened under Rule 12(8) of the C.S.T (O) Rules by mere change of opinion, fails the same being misconceived. Second is as to whether reasonable opportunity of hearing was afforded to the petitioner - Held that:- The Assessing Officer has extracted the report of Paradeep Port Trust and Ocean Loss Report submitted by the IOCL in reassessment order only for the purpose of better appreciation of the alleged transactions effected by the petitioner dealer which has been informed to the petitioner vide letter dated 30.12.2006 (Annexure-3). The information of Paradeep Port Trust or IOCL has not been utilized by the Assessing Officer against the petitioner-dealer to enhance the turnover alleged to have been escaped from assessment in notice dated 30.12.2006 under Annexure-3. What is taxed in the impugned reassessment order was exactly the same transaction shown in the letter dated 30.12.2006 (Annexure-3) communicated to the petitioner much before passing the impugned order of reassessment. Therefore, it cannot be said that the petitioner was not aware of the materials on the basis of which the reassessment proceeding has been made. Third is as to whether the Assessing Officer has passed the impugned assessment order on the dictate of his higher authority - Held that:- Further perusal of the assessment order passed under Rule 12(8) of the CST (O) Rules also reveals that on receiving report from the Additional Commissioner, the Assessing Officer applied his mind, examined the case of the assessee with reference to the copy of the hospitality arrangement between BPCL and HPCL and the statement of inter-state sale of petroleum products dispatched by HPCL from Lighterage Terminal at Paradeep to other oil companies outside the State filed by the petitioner, documents and previous order of assessment and referring to all the relevant provisions of the CST Act came to the conclusion that there has been evasion of tax by the petitioner-assessee. Fourth is whether notice for reassessment proceeding under Rule 12(8) of the CST(O) Rules has been issued on 29.12.2006 whereas initiation of the reassessment proceeding was made on 30.12.2006 and therefore the entire reassessment proceedings are vitiated in law - Held that:- It reveals that no date is put under signature of the STO. In view of the order sheet entry dated 30.12.2006 and that notice under Rule 10 of CST(O) Rule has been issued on 30.12.2006, it can be safely concluded that the date 29.12.2006 appearing on the left side bottom portion of the notice (Anneuxre-2) is a mistake occurred inadvertently. Therefore, the allegation that opposite party issued notice prior to initiation of proceedings under Rule 12(8) and the entire reassessment proceedings are vitiated, is not sustainable in law. Fifth is as to whether the issue involved in the present case are similar/identical to that of the case of Indian Oil Corporation Limited vs. State of Orissa and Others - Held that:- So far as the present case is concerned, the petitioner has neither disclosed the transactions in question in its return much less furnished any declaration in Form-F to prove that the transfer of goods from Lighterage Terminal at Paradeep to outside the State, i.e., Haldia was otherwise than by way of sale. Sixth is as to whether dispatch is either by way of inter-state sale or branch transfer - Held that:- There was no movement of goods resulting completed sale, system and procedure adopted by BPCL and other Companies cannot be treated as inter-state sale in the process of trade and commerce and based on presumption. In the fact situation, it is open to the petitioner to approach the First Appellate Authority challenging the impugned assessment order (Annexure-5), if so advised, taking all its contentions with regard to alleged transfers of HSD and SKO in question from the Lighterage Terminal at Paradeep to outside the State, i.e., Haldia and that the petitioner is not liable to pay tax under the CST Act. If any such appeal is filed within two weeks from today, the Appellate Authority is directed to adjudicate that issue, after affording opportunity of hearing to the petitioner, and pass order in accordance with law - With the aforesaid observations and directions, the writ petition is dismissed
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