TMI Blog1986 (9) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... ual dealer under the Act is liable to be taxed in respect of the goods transported. On 4th August, 1984, a similar notice was served in respect of some other goods in another truck in similar manner. On 25th May, 1985, and on 26th May, 1985, some more goods were being carried through the same check gate where the Sales Tax Officer inspected the vehicles and issued notices to the drivers of the vehicles that the way bills for the goods carried are defective and demanded amounts of Rs. 4,000 and Rs. 5,400 to be paid as provided in rule 94 of the Rules made under the Act. Petitioner has prayed to quash the aforesaid two notices in form VI-A and the two notices in form VI-B which have been filed as annexure 1 series to this writ application. 4.. Mr. B.K. Mohanti, the learned counsel for the petitioner, took us through the various provisions of the Act and the rules made thereunder. He also placed before us the impugned notices to submit that the actions of the authorities are not in accordance with the provisions of the statute and are liable to be quashed. 5.. The relevant provisions of the statute placed before us read as follows: "Section 16-A. Establishment of check post or bar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is set up upon a thoroughfare or road, barriers may be erected across the road or thoroughfare in the form of a contrivance to enable traffic being intercepted, detained and searched. (2) The State Government may empower any officer not below the rank of an Assistant Sales Tax Officer to be in-charge of a check post or/and a barrier. (3)(a) The driver or any other person in-charge of a goods vehicle or boat shall stop the vehicle or boat, as the case may be, at a check post or barrier and keep it stationary as long as it is reasonably required by the officer-in-charge of the check post or barrier and allow examination of the goods in the vehicle or the boat and inspection of all the records connected with the goods in the vehicle or boat including way bill in form XXXII. (b) The way bill in form XXXII shall be supplied. (4)(a) If on such inspection the officer-in-charge of the check post or barrier finds that the goods are not fully covered by a way bill in form XXXII or that the way bill is defective or incomplete or that there is evasion of tax in respect of goods carried in such vehicle or boat, as the case may be, he shall serve on the owner of the goods or any person o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods, in question. If the officer is satisfied that there has been no evasion of tax, he may, for reasons to be recorded in writing, order the release of the confiscated goods. The officer shall also specify in his order the amount to be paid towards the charges, if any, incurred by the State for the safe custody of the goods and other incidental charges. If the officer is not satisfied, he may, after recording the reasons therefore order that the sale under sub-rule (6) may be proceeded with. (10) Goods ordered to be released or the proceeds thereof referred to in sub-rule (8) if they have been sold, shall be handed over or refunded, as the case may be, by the officer-in-charge thereof to the owner of the goods or to his agent on payment of or after deducting the charges incurred by the State." "FORM XXXII Form of way bill [See rule 94-A(3)] 1.. (a) Name and address of the person consigning the goods. (b) If he is a dealer, Registration Certificate No. under the Orissa Sales Tax Act and the name of the concerned sales tax circle .................. 2.. Full address of the place............................................................... (1) From which they are c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Seal. "Section 12-B. Assessment of tax on casual dealers.-Notwithstanding anything in sections 12 and 12-A, it shall be open to an assessing authority, including the officer-in-charge of the check post or barrier referred to in section 16-A to make a provisional or final assessment on a casual dealer on the turnover of the purchase, or the sale of the goods, effected by him, in accordance with such rules as may be made in this behalf." "Rule 28-B. Provisional assessment of casual dealers.-(1) A casual dealer shall furnish to the assessing authority including the officer-in-charge of check post or barrier referred to in section 16-A, when called upon to do so, by a notice in form VI-A, a return of estimated turnover in form IV-B within 24 hours or such period as may be specified in the notice. (2) The assessing authority or the officer-in-charge of check post or barrier referred to in section 16-A, shall if he is satisfied after making such scrutiny of the accounts of the casual dealer and such enquiry as he may consider necessary that the return furnished under sub-rule (1) is correct and complete provisionally assess the amount of tax due from him on the basis of such return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment of the Sales Tax Officer after giving adequate opportunity to the Person of being heard. The procedural law in rule 28-B having required adequate opportunity to be given to the person to whom the notice in form VI-A is issued, the notice is directly inconsistent inasmuch as the same has provided that no further opportunity shall be given to the person. Taxing statutes are to be rigidly construed. The notice, thus, cannot be sustained as being inconsistent with the rules. In the aforesaid view of the matter, annexures 1-B and 1-C are liable to be quashed. 7.. It is now to be examined if the notices vide annexures 1 and 1-A in form VI-B can be sustained. The notices indicate that they have been issued on account of defective way bills. It is not in dispute by both the parties that the defect is that the undertaking required by the Commissioner to be given by the person whose goods are transported has not been given on both the occasions. Perusal of section 16-A, rule 94 and the pro forma statutory way bill do not disclose that an undertaking is to be given. It is not the case of the department that there is omission in the way bill or the same is incomplete in any other ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
