2023 (1) TMI 247 - HC - CST, VAT & Sales Tax

Validity of assessment order passed by the Additional Sales Tax Officer, Kendrapara Circle, Kendrapara under Section 42 of the OVAT Act - Assessing Officer (AO) did not calculate any VAT on sale of de-oiled cake because it was exempted from VAT - short levy of purchase tax - instead of quashing the reassessment order, the JCST choose to remit the matter to the AO for a fresh hearing and a decision - HELD THAT:- The factual finding by the JCST was that the reopening of the assessment was done by the AO by simply accepting the objection of the AG (Audit) without forming independent opinion on whether such objection by the AG (Audit) was correct or not. There was no recording by the Addl. STO about being satisfied independently then there was escapement of taxable turnover.

The legal position in this regard has been explained by this Court in INDURE LIMITED VERSUS COMMISSIONER OF SALES TAX, CUTTACK, ORISSA AND OTHERS [2006 (7) TMI 572 - ORISSA HIGH COURT] where it has been held that an objective opinion has to be formed by the STO and that he cannot “totally abdicate or surrender his discretion to the objection of the audit party by mechanically reopening assessment under Section 12(A) as has been done in this case.” It may be noticed here that the above observation was made in the context of Section 12(8) of the OST Act which corresponds to Section 43 of the OVAT Act.

Thus, simply remanding the matter to the STO as has been done by the JCST would serve no purpose since in no way would that alter the factual position namely, that in the record sheet there would be no recording of the objective opinion of the STO about escapement of taxable turnover.

This Court disposes of the revision petition by answering the question framed in the negative i.e. in favour of the Dealer and against the Department.