TMI Blog1995 (9) TMI 332X X X X Extracts X X X X X X X X Extracts X X X X ..... s issued on the following basis (as extracted from the notice): "Whereas I have reason to believe that your turnover of sales and/or purchases for the quarter/year ending 1989-90 on which tax payable under the Orissa Sales Tax Act, 1947 has escaped assessment/has been under-assessed/has not been assessed due to the tax having been compounded when composition is not permissible." Petitioner was required to submit within one calendar month from the date of receipt of notice a return in form IV showing the particulars of turnover for the year ending 1989-90. After complying with the notice, petitioner wanted to know the reason for reopening. The Sales Tax Officer indicated that reopening is done in view of decision of the apex Court in S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue on the other hand submitted that the reasons for reopening have been indicated to the petitioner after furnishing its return as required under notice (annexure 2) and whatever objections are being raised by the petitioner or will be raised will be dealt with while making assessment. According to him, at this intermediate stage no adjudication should be made and even if it is made that will be binding on the petitioner notwithstanding reiteration of the stand while making assessment. 4.. In our view, the dealer has right to show cause against proposed reassessment and to question jurisdiction of the taxing authority to the proceeding under section 12(8) of the Act. It is however to be noted that notice is however, not the foundation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Tax Officer regarding absence of reason, or lack of jurisdiction as well as alleged absence of materials necessitating reopening, the Sales Tax Officer shall consider those aspects. If question relating to jurisdiction and desirability to proceed in the matter is answered against the dealer, the Sales Tax Officer shall be free to proceed further to reassess. In our view the aforesaid course would subserve interest of justice and is also in accordance with provisions of order 14, rule 2 of the Code of Civil Procedure, 1908 (in short, "the CPC") which permits issue relating to jurisdiction when one of law to be tried and determined as preliminary issue. A preliminary point is one which prima facie negatives either jurisdiction of the court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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