TMI Blog2008 (4) TMI 680X X X X Extracts X X X X X X X X Extracts X X X X ..... facts and circumstances of the case, the imposition of penalty by the Sales Tax Officer and confirmed by the Assistant Commissioner and Sales Tax Tribunal is correct law? Held that:- This court holds that since no tax can be imposed by way of subsequent lease rent in respect of the same goods on the petitioner, there cannot be any imposition of penalty for non-payment of the same. As such, the penalty imposed on the petitioner is quashed. All the three questions referred to above on which the matter has been argued are answered in the negative, i.e., in favour of the assessee and against the Revenue. - - - - - Dated:- 2-4-2008 - GANGULY A.K. C.J. AND MAHAPATRA B.N. , JJ. A.K. GANGULY C.J. This sales tax revision has been fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Road, Bangalore and branch office at plot No. 6, Arunodaya Market, Link Road, Cuttack 12. The petitioner carries on business in banking and leasing of diverse equipments and is registered within the jurisdiction of the Sales Tax Officer, Cuttack I Central Circle, Cuttack, having registration certificate No. CUIC 1932 which appears from annexure 3 to the paper book. On or about March 29, 1995, the petitioner entered into a lease agreement with JK Corp Ltd. at New Delhi for lease of equipments described in the Schedule of the lease deed. Those equipments were purchased by the petitioner at the request of the lessee and leased out to the said JK Corp Ltd. The petitioner purchased those machineries, namely, coal-fired high efficiency boiler ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first appellate order the petitioner filed second appeal before the Orissa Sales Tax Tribunal which was numbered as S.A. No. 2774 of 1999-2000. The said appeal was disposed of by the Tribunal by its order dated August 19, 2002 and the order of the Assistant Commissioner was confirmed. The learned counsel for the petitioner assailing the order passed by the statutory authorities submitted that the scheme of the said Act being a singlepoint levy, the taxable turnover under section 5(2)(A) is arrived at after making the deductions provided in different sub-clauses. It has been argued that generally the goods which are subject to Orissa sales tax are taxed at the last point of sale in Orissa. In case the goods are to be taxed at the first p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the Orissa High Court in Bharat Heavy Electricals Ltd. v. Union of India reported in [1988] 71 STC 25. In paragraph 13 of the said judgment, the learned judges of this High Court held as follows: 13. It is submitted that goods which have suffered taxation in a series of sales are excluded from further taxation and the plain meaning of section 5(2)(AA)(i) does not envisage such exclusion. Section 5(2)(AA)(i) is also subject to section 8. When claimed before the assessing authority, it is to determine if the goods involved in works contract were subject to taxation in a series of sales. If it is so\ held, the same would be excluded. Section 8 and section 5(2)(AA)(i) are to be read together. The learned counsel has al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner submitted and this court finds there is a lot substance in that, that the scheme of the OST Act is one of singlepoint taxation and in view of the provisions of section 8 of the OST Act both levy of tax in respect of same sale is prohibited. Reference in this connection is made to the provisions of section 8 of the OST Act which are set out below: 8. Powers of the State Government to notify points at which goods may be taxed or exempted. Notwithstanding anything to the contrary, in this Act, the State Government may notify the points in the series of sales or purchases by successive dealers at which any goods or classes or description of goods may be taxed or exempted from taxation and in doing so may direct that sales to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t taxation. After saying so, the Tribunal could not have held that the transfer of right to use the goods and the transfer of property in goods are two distinctly separate taxable events. This court is of the view that the Tribunal's interpretation of section 2(g) and section 8 of the OST Act is erroneous and contrary to the interpretation accepted in I.T.C. Classic Finance [1995] 97 STC 330 (AP) which has been affirmed by the Supreme Court in 20th Century Finance [2000] 119 STC 182. The learned counsel for the petitioner has relied on a subsequent Division Bench judgment of the Sales Tax Tribunal in the case of the petitioner for the earlier period, i.e., for the quarters ending September, 1995 to March, 1996 and quarters ending Jun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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