TMI Blog2013 (3) TMI 568X X X X Extracts X X X X X X X X Extracts X X X X ..... ars disclosed in the return/revised return validly filed under the statute including the claim of exemption/deduction. Whether the assessee can change its stand in course of reassessment proceeding under Section 43 of the OVAT Act when its claim of exemption under Section 6(2) of the CST Act is disallowed on the basis of a tax evasion report and the dealer is entitled to take altogether a different stand and to submit new evidence in support of its changed stand? In view of the above, if the petitioner fails to establish its claim of exemption under Section 6(2) of the CST Act made in its return, the appellate authority while dealing with its alternative prayer claiming exemption under Notification No.629/2008 dated 23.12.2008 shall adjudicate various issues arise out of such claim. Here the writ petition is dismissed. - W.P.(C) No.31894 of 2011 - - - Dated:- 15-2-2012 - SHRI. V. GOPALA GOWDA AND SHRI B.N. MAHAPATRA JJ. For Petitioners: Mr. V. Raman, Senior Advocate M/s B.P. Moahanty, N.Paikray, A.N. Ray, K.K. Sahoo, P.K. Mishra J.J. Pradhan For opp. parties: Mr. M.S. Raman (Addl. Standing Counsel for Revenue) ---------- P R E S E N T: JUDGMEN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) of the CST Act. Accordingly, the petitioner in its periodical returns has disclosed the supply made to PGCIL and NTPC as exempted turnover under Section 6(2) of the CST Act. Subsequently, a notice in Form VAT 401 issued by the Deputy Commissioner of Commercial Taxes, Enforcement Range, Bhubaneswar (for short, STO Enforcement ) under Subrule (1) of Rule 75 was served on the petitioner to produce various accounts. In response to the said notice, the petitioner appeared on 25.02.2011 and produced the relevant documents. On 28.02.2011, STO Enforcement Range forwarded tax evasion report bearing No.89(10-11) to the opposite party No.2 alleging that taxable sales turnover of the petitioner has escaped assessment and resulted in evasion of VAT. On the basis of such report, O.P. No.2- STO issued notice in Form VAT 307 under Section 43 of the OVAT Act read with Rule 50(1) of the OVAT Rules for reopening the assessment of petitioner No.1 for the period starting 1st October, 2008 to 31st January, 2011. In response to said notice, the petitioner appeared before opposite party No.2 and filed relevant documents on 07.08.2011 and written submission on 29.08.2011. On 29.10.2011, opposite par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion in spite of request. The sales effected by the petitioner are completely exempted from OVAT Act under the exemption Notification which was issued in exercise of the power vested under Section 17A of the OVAT Act wherein the State Government in public interest can exempt the sale. Placing reliance on a judgment of the Madras High Court in the case of State of Tamil Nadu Vs. Arulmurugan and Company, [1982] 52 STC 381 (Mad.] it was submitted that the statutory form C can be filed by an assessee even at the appellate stage. Placing reliance on another judgment of the Madras High Court in the case of Ramco Cement Distribution Co. P. Ltd., Rajapalayam v. Deputy Commercial Tax Officer, Rajapalayam; [1974 (33) STC 18 (Mad.)], it was submitted that in a matter where the statute itself gave exemption and if that exemption has been inadvertently not claimed by the petitioner, it is certainly a case where the taxing authorities also should equitably view the situation and render justice. Non-acceptance of rectification of mistake is arbitrary and unfounded in law. Both levy and collection of tax is without authority of law. 5. Further placing reliance on the decisions of the Hon b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he laying. A simple laying requirement, providing no affirmative procedure is only directory and does not affect the validity of law or its coming into force. 7. At this juncture, the question arises as to whether a writ Court should pass the order allowing prayer of the petitioner particularly when the same is accepted and supported by the learned counsel appearing for the Revenue without making any reference to the reasons/grounds assigned by the Assessing Officer in the impugned order of assessment to disallow the claim of exemption made by the petitioner in its returns. Admittedly, Mr. M.S. Raman, learned counsel appearing for Revenue has not thrown any light on the assessment order. On the other hand, the stand taken by Mr. M.S. Raman supporting the case of the petitioner runs contrary to the case of the Assessing Officer. In absence of any assistance from the side of learned counsel appearing for the Revenue for proper adjudication of the issues involved in the present case with reference to the contentions urged by the learned counsel appearing for petitioner, it is felt necessary to know about the reasons assigned by the Assessing Officer for raising such huge demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been received before movement of goods; (c) the movement of goods in course of inter-state trade comes to an end once the representative of the dealer receives the goods inside Odisha; (d) the agency verifies the goods and then takes delivery of the goods from the dealer which is nothing but another transaction of sale within the State of Odisha exigible to VAT. 10. The contention of the dealer before the Assessing Officer, inter alia, are as follows:- (i) That the Government of India introduced a rural electrification Scheme throughout India under Rajib Gandhi Grameen Vidyut Karan Yojana (RGGVY) for the purpose of connecting electric line to rural area and for the said purpose Government of India appointed different Public Sector Undertakings such as PGCIL, NTPC and NHPC etc. as nodal agencies for implementation of the said Scheme. (ii) That pursuant to the above Scheme of Government of India, PGCIL NTPC awarded two divisible contracts such as supply of equipments and errection and commissioning of electrification work. Under supply contract, the goods like PSC polls, conductors and transformer etc. have been purchased and transported from outside the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttract the levy of tax under OVAT Act. (xi) That assuming that the sales in transit claimed by the dealer is not accepted then entire sales will be exempted from payment of tax under OVAT Act, 2004 in view of the notifications of Finance Department vide No.629/2008 dt.23.12.2008. 11. The opposite party No.2-Assessing Officer rejected the petitioner s claim of exemption under Section 6(2) of the CST Act and under Notification No.629/2008 dated 23.12.2008 inter alia for the following reasons:- (i) That the dealer has entered into separate and divisible contract with PGCIL and NTPC for both (a) Execution of works contract of Electrification in Rural area under RGGVY Scheme; and (b) for supply by way of sales of equipments and gets an advance of 10% for works contract and 15% for supply of equipments. (ii) The claim of sales made out of the purchases effected from outside vendors and claimed as exempted sales under Section 3(b) and 6(2) of the CST Act does not fulfill the conditions stipulated in the Act in the following manner; (a) The dealer gets advance of 15% before supply of goods and before issuance of purchase order; (b) The dealer places the order with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner all the following conditions to avail exemption under Section 6(2) of the CST Act have not been satisfied. (i) A movement of goods in pursuance to a prior sale is the first pre-requisite to a subsequent sale for exemption which means the first sale must have been a sale in the course of inter-State trade or commerce. (ii) Subsequent sale must have taken place during the movement under the first sale which means the second sale must have been effected before the journey of goods ends or before the goods reach their destination. (iii) The subsequent sale is effected by a transfer of documents of title to the goods. (iv) The subsequent sale must be one that comes within clause (b) of section 3. (v) Subsequent sale must be either to (a) Government or (b) to a registered dealer under section 7 of the Central Sales Tax Act. (vi) The dealer effecting subsequent sale has to produce before assessing authority form E-I and E-II as the case may be, obtained from the dealer when he purchased the goods and also produce form C or D as the case may be obtained from the dealer or a person to whom the subsequent sale is effected. (l) On the basis of above findings, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll as grounds taken before the Assessing Officer as stated in paragraph 10 above. On the contrary, the Assessing Officer s case is that the transaction in question is intra-state sale for the reasons stated in paragraph 11 above and therefore, the dealer is not entitled to get exemption under Section 6(2) of the CST Act. Perusal of the rival contentions taken in paragraphs 10 and 11 by the petitioner and the Assessing Officer in support of their respective claims show that pure disputed questions of fact are involved. For example Specific finding of the Assessing Officer is that once the goods reaches within the territory of Odisha one representative of the Dealer receives the goods from the transporter by endorsing on the backside of the LR as received the goods in good conditions . After receipt of the goods by the dealer inside the State of Odisha one representative of the agencies conducts the verification of the goods under consignment in terms of the packing list and after verification by the representative of the agency, goods are delivered to the agency by the dealer. 14. Further in assessment order, the Assessing Officer has referred to the report of the STO, Enforc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts and material evidence available on record. Therefore, it is a fit case where the petitioner should approach the First Appellate Authority for appropriate relief. 17. There are also some other disputed questions of fact which are required to be adjudicated by the Appellate Authority, who is a fact finding authority. For example, from the assessment orders it reveals that in course of examination of accounts the Assessing Officer has noticed that in respect of local sales reflected in its return the dealer has claimed exemption from payment of tax in respect of supply of goods under RGGVY Scheme to the tune of ₹ 54,66,81,510/-, but it has furnished the required certificate of exemption from competent authority to the tune of ₹ 42,73,60,710.56 only and failed to furnish certificate of exemption for balance amount of ₹ 11,93,20,799.94 which has been taxed under appropriate rate of tax, i.e., @ 12.5%. Whether there was sufficient reason for not furnishing the certificate of exemption as required under the Statute for the balance amount before the Assessing Officer during reassessment proceeding under Section 43 of OVAT Act initiated in the year 2011 for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... VAT Act in the year 2011 to assess the turnover escaped from self assessment for the period from 01.10.2008 to 31.01.2011. Now, therefore the question arises as to whether the petitioner is entitled to claim exemption from payment of tax on a ground not reflected in its return filed under OVAT Act. 19. Assessment under Section 43 of the OVAT Act is meant for assessment of the turnover escaped from original assessment. It is only after a dealer is assessed under Sections 39, 40 and 42 for a tax period, if the Assessing Officer on the basis of any information in his possession is of the opinion that a whole or any part of the turnover of the dealer in respect of such tax period has escaped assessment or been under-assessed or been assessed at a rate lower than a rate at which it is assessable or that a dealer has been allowed wrongly any deduction from his turnover or input tax credit of which he is not eligible, the Assessing Officer upon giving the dealer a reasonable opportunity of being heard and making such enquiry as he deems necessary has to proceed to assess the best of his judgment the amount of tax due from the dealer. That is why there is a provision under Section 43 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised statement filed on 08.12.2008 in absence of revised return as contemplated under Section 139(5) of the I.T. Act and the CIT is also justified in confirming the view of the learned Assessing Officer. 24. Law is well settled that when the statute requires to do certain thing in certain way, the thing must be done in that way or not at all. Other methods or mode of performance are impliedly and necessarily forbidden. The aforesaid settled legal proposition is based on a legal maxim Expressio unius est exclusion alteris , meaning thereby that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner and following of other course is not permissible. (See Taylor v. Taylor, (1876) 1 Ch.D.426; Nazir Ahmed v. King Emperor, AIR 1936 PC 253; Ram Phal Kundu v. Kamal Sharma; and Indian Bank s Association v. Devkala Consultancy Service, AIR 2004 SC 2615). 25. Further, at the time of scrutiny of the return under any of the provisions of the statute the assessee is required to adduce evidence in support of his particulars disclosed in the return/revised return validly filed under the statute including the clai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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