TMI Blog2007 (9) TMI 390X X X X Extracts X X X X X X X X Extracts X X X X ..... essment whereas provisions after section 15 of the said Act refer to recovery and collection of tax. The scheme of the Act, therefore, is based on the dichotomy between assessment on one hand and recovery of tax on the other hand. Under section 12, the assessing officer has to examine the returns. He may accept the returns. - Civil Appeal No. 7540 of 2001 - - - Dated:- 18-9-2007 - KAPADIA S.H. AND SUDERSHAN REDDY B. JJ. A.K. Sanghi and Rono Mohanty, Advocates for the respondent. Rakesh Dwivedi, Senior Advocate, Mrs. Kirti Renu Mishra, Advocate with him for the appellants. -------------------------------------------------- ORDER Respondent is a wholesale dealer in biscuits of different brands under the provisions of the Orissa Sales Tax Act, 1947 and Central Sales Tax Act, 1956. On October 14, 1999, goods were being unloaded from vehicle No.NWB-24-A-0112 when the Investigating Officer of Vigilance Wing, Balasore Division, found certain irregularity and, accordingly, the Sales Tax Officer (Vigilance), raised a sum of Rs. 32,592 as tax and Rs. 54,320 as penalty under section 16D of the Orissa Sales Tax Act, 1947 (for short, "the Act"). The main contenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 3(1) of the Act. "3. Taxing authority. (1) The State Government may appoint any person to be the Commissioner of Sales Tax, Orissa, and he shall exercise such powers and discharge such functions as are or may be conferred or imposed by or under the provisions of this Act." On reading section 3(1), it is clear that the State Government may appoint any person to be the Commissioner of Sales Tax and he shall exercise such powers and discharge such functions as may be conferred or imposed on him under the provisions of the Act. In the present case, on May 14, 1997, following notification was issued by the Commissioner of Sales Tax under which he has delegated his powers and duties, inter alia, under section 16D of the Act, to the Sales "Office of the Commissioner of Commercial Taxes: Orissa: Cuttack: No. V(VI)45/97. 110008/C.T. Dated: 14.5.1997 Notification In exercise of the powers conferred by section 17 of the O.S.T. Act, 1947 (Orissa Act 14 of 1947) I, S.K.Samantaray, I.A.S., Commissioner of Sales Tax, Orissa, do hereby delegate my powers and duties under new section 16AA and section 16D of the said Act to the Sales Tax Officers and to the Inspector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of tax due from the dealer on the basis of such returns. Section 12(2)(a) states that if the Commissioner is not satisfied with the production of evidence and returns filed by the dealer, then, in accordance with the procedure prescribed under section 12, the Commissioner shall, after hearing the dealer, assess him on the basis of the turnover. Under section 12(4), the Commissioner is also empowered to make best judgment assessment. Therefore, in our view, section 12 refers to assessment to be made by the Commissioner. Under section 16A of the Act, the State Government may, in order to prevent or check evasion of tax, by notification, direct creation of a barrier and it may empower the Commissioner in this behalf to stop the vehicle and to take such steps in the matter of recovery of tax which the Commissioner believes to have been evaded. Section 16D of the Act deals with production and inspection of documents and accounts in certain cases. We quote hereinbelow section 16D in its entirety: "16D. Production and inspection of accounts and documents in certain cases. (1) Without prejudice to the provisions contained in sections 16A and 16B, where a transporter or a bailee or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the owner or lessee of the warehouse, as may be necessary, granting a receipt for the same and shall retain the same as long as may reasonably be necessary for examination thereof or for a prosecution. (3) The power conferred under sub-section (2), shall include the power to break open any box, almirah or other receptacle in which any account, register or other documents of the transporter, bailee or the owner or lessee of a warehouse or to break open the doors of any premises where any such account, register or documents or any goods may be kept. (4) The powers exercisable under sub-section (3) shall not be delegated to any officer below the rank of a Sales Tax Officer appointed under this Act or the Rules made thereunder. (5) The Commissioner shall have the power to seize any goods vehicle or seize and confiscate any goods of any transporter, bailee or the owner or lessee of a warehouse, which are found in any office, shop, godown, vehicle or vessel or any other place while on transit but not accounted for by the transporter, bailee or the owner or lessee of the warehouse, as the case may be, in his accounts, registers and other documents maintained in respect of su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o is, thereafter, required to carry out the assessment proceedings against the defaulter. We find no merit in this argument. The word "assess" in section 16D has different connotation. In our view, the word "assess" in section 16D talks about computation. Computation is also assessment. Section 16D is a code by itself. It operates in a different sphere. Under section 12 of the Act, the assessing officer analyses the returns which are filed by the dealer whereas in cases falling under section 16D where the assessee offers to pay the tax on the spot for release of his goods/vehicle, the Sales Tax Officer (Vigilance) is required to calculate/compute the tax and, on payment of tax, he allows the goods/truck to be released. In our view, this computation undertaken by the Sales Tax Officer (Vigilance) on the spot is also an assessment. However, that assessment (computation) of the tax has nothing to do with the regular assessment under section 12 of the Act. For the aforestated reasons, we set aside the impugned judgment of the High Court Reported as Dutta Traders v. Sales Tax Officer [2000] 120 STC 294 (Orissa). We express no opinion on the merits of the matter particularly, with re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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