9911796707
TMI Blog2007 (11) TMI 558X X X X Extracts X X X X X X X X Extracts X X X X ..... nch of this court on September 20, 2001 while issuing notice on the question of admission indicated that there were conflicting opinions of this court on the point at issue and, passed the following order: ". . . There appears to be some conflicting opinion in the judgments of this court in P.R. Tata & Co. v. Sales Tax Officer, Koraput-I Circle [1971] 27 STC 176, State of Orissa v. Iqbal Bros. [1990] 79 STC 337 and Iqbal Brothers v. State of Orissa (S.J.C. No. 49 of 1986, disposed of on November 17, 1994) which need to be resolved by the Full Bench." The honourable Full Bench after hearing the parties by its order dated February 15, 2007 remanded the matter back to the Division Bench by observing as follows: "5. On going through the aforesaid three judgments, we find that the decisions in P.R. Tata [1971] 27 STC 176 (Orissa) and State of Orissa v. Iqbal Bros. [1990] 79 STC 337 (Orissa) were rendered on different facts and circumstances. In P.R. Tata [1971] 27 STC 176, the lease was taken by the assessee from the State Government and in State of Orissa v. Iqbal Bros. [1990] 79 STC 337 (Orissa), the royalty was paid to the State Government for procurement of mohua flowers. Howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to include the expenses incurred by the petitioner towards collection, transportation charges, etc., in the purchase price for the purpose of levy of tax under the Act. Relying on the judgments of this court rendered in P.R. Tata's case [1971] 27 STC 176 and in the case of State of Orissa v. Iqbal Bros. [1990] 79 STC 337, the petitioner contended that expenses incurred by it towards collection and transportation charges cannot form part of the purchase price which is only confined to royalty paid to the Government. Therefore, reopening of assessment under section 12(8) of the Act is not sustainable. The petitioner further contended that notice issued under section 12(8) of the Act is also otherwise not sustainable as the STO has not indicated the reason for reopening of the assessment to the petitioner in writing. The learned counsel appearing for the opposite party vehemently urged that the petitioner used to purchase tamarind (minor forest product) from the different forest areas by taking exclusive lease from the Divisional Forest Officer during the three assessment years with the condition that the petitioner will open procurement centres and storage godowns with the appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Tax Tribunal relying upon P.R. Tata's case [1971] 27 STC 176 holding that the dealer was to pay tax on the purchase turnover of mohua flower on the basis of royalty amount paid by the dealer to the Forest Department to remove mohua flower collected from the persons on payment of remuneration. In Iqbal Brothers v. State of Orissa (S.J.C. 49 of 1986), disposed of on November 17, 1994, the questions posed for opinion before a bench of this court were as follows: (i) Under the facts and circumstances of the case, whether the royalty paid to the forest department on the collection of mohua flower from Government forest lands shall be the purchase turnover in the hands of the dealer-appellant? (ii) Under the facts and circumstances of the case, whether the Tribunal is justified to hold that all the charges such as transport charges, commission paid to agents and handling charges, etc., incurred by the dealer-appellant after collecting mohua flower from Government forest lands are to be included in the purchase turnover of the appellant and are exigible to sales tax in view of definition under section 2(ee) and 2(j) of the Orissa Sales Tax Act?" Considering the facts of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9; means the amount payable by a person as valuable consideration for the purchase or supply of any goods less any sum allowed by the seller as cash discount according to ordinary trade practice, but it shall include any sum charged towards anything done by the seller in respect of the goods at the time of or before delivery of such goods other than the cost of freight or delivery or the cost of installation when such cost is separately charged." Thus, the term "turnover of purchase" means the aggregate of the amount of purchase price paid and payable by a dealer in respect of the purchase or supply of goods or classes of goods declared under section 3B of the Act and the term "purchase price" means the amount payable by a person as valuable consideration for the purchase or supply of any goods less any sum allowed by the seller as cash discount according to ordinary trade practice, but it shall include any sum charged towards anything done by the seller in respect of the goods at the time or before delivery of such goods. In this context, it is also relevant to go through the agreement form of the forest contract enclosed to the writ petition under annexures 2A and 3A. It revea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the Schedule II to the Government of Orissa. On payment of the consideration amount to the Government of Orissa, the petitioner acquires exclusive right to procure tamarind from the leased out area during the lease period. After acquiring the right to procure tamarind from the leased out area on payment of the consideration money to the Government of Orissa, nothing is done by the seller, i.e., the Government of Orissa for procurement of tamarind by the petitioner. It becomes the sole responsibility of the petitioner to procure tamarind from the leased out area at its own cost. Hence, the consideration, i.e., royalty paid by the petitioner to the Government of Orissa is the purchase price in terms of section 2(ee) of the Act and the petitioner's case is squarely covered by the ratio of the decision rendered in P.R. Tata's case [1971] 27 STC 176 (Orissa) and State of Orissa v. Iqbal Bros. [1990] 79 STC 337 (Orissa). On the other hand, in the agreement form of forest contract under which the petitioner acquires right to procure tamarind from the leased out area nothing is mentioned to the effect that the petitioner would purchase tamarind from the primary collectors (tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing in view the ratio of the decisions rendered in the above cases, the second ground of challenge is now considered. In paragraph 10 of the writ petition it has been averred that in response to the notice issued under section 12(8) of the Act, the petitioner appeared before the assessing officer and when asked for the reason for reopening of the assessment in writing, it was pointed out by the STO that the A.G. audit party has objected the assessment on the ground that in paying royalty the petitioner has not included the procurement expenses, transportation and handling charges for collection of tamarind and further the Sales Tax Officer-opposite party indicated that the purchase turnover disclosed on the basis of royalty paid to the Divisional Forest Officer in lieu of exclusive right for procurement of forest produce may not be acceptable in view of the latest judgment of the honourable High Court in Iqbal Brothers's case rendered on November 17, 1994 in S.J.C. No. 49 of 1986. This shows that the reason for reopening of the assessment has been indicated to the petitioner by the STO and only on that basis it has filed the present writ petition. It makes no difference even if ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
