TMI Blog2009 (4) TMI 852X X X X Extracts X X X X X X X X Extracts X X X X ..... e party No. 5, Rishab Electricals Pvt. Ltd. (for short, REPL ) against the sale made to it on the ground that such action of the assessing officer is contrary to law. The facts and circumstances giving rise to this case are that the petitionercompany is a Government of India company, registered under the Companies Act, 1956 and under the Orissa Sales Tax Act, 1947 (hereinafter referred to as, the OST Act ) having its refinery and alumina plant at Angul. The petitioner-company is engaged in the business of manufacture and sale of aluminium ingots, wire rods, billets, etc. During the year under consideration, i.e., 2002-03, the petitioner sold wire rods worth Rs. 31,58,39,028.51 to M/s. REPL against the statutory declaration form No. 1D(96) issued by it claiming sales tax exemption on purchase of raw materials under the Industrial Policy Resolution, 1996. At the time of assessment, the petitioner produced the statutory declaration forms in support of its claim of deduction for sale of wire rods to REPL. But, the assessing officer did not accept the said declaration forms and added Rs. 31,58,39,028.51 to the taxable turnover of the petitioner and levied tax and surcharge on the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued by the competent authority sales were effected to REPL and, therefore, the petitioner should not be held responsible for any tax against such sales. Further, Mr. Sharma emphatically argues that it is neither possible nor practicable for the selling dealer to monitor/verify whether REPL had exceeded the ceiling limit of tax exemption. Opposite party No. 5 might have purchased raw materials, machineries, spare parts, etc., from different other sources availing of sales tax exemption on such purchase and also on sale of finished products for which it is impossible for the petitioner to verify whether the limit prescribed for availing of tax concession had been exceeded or not by a particular date. The only duty of the petitioner is to verify whether the goods purchased have been specified in the registration certificate of the buying dealer and declaration form No. 1D(96) issued by the competent authority is furnished for availing of exemption. If these two conditions are satisfied, the petitioner has no option but to sell the materials to REPL. Therefore, the order of the assessment passed by the assessing officer imposing tax on sale of wire rods to REPL against form No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year 2002-03 and thereafter automatically ceased to avail of any sales tax exemption under IPR-96 was not an issue before this court. Mr. Kar expressed his doubt, regarding the correctness of the tax exemption certificate dated September 24, 1998 (annexure 2) wherein it has been certified that the petitioner-company is entitled to tax exemption for eight years from the date of commercial production, i.e., from June 12, 1998 to June 11, 2006, and this aspect has not been examined at any point of time either by the statutory authority or this court. According to Mr. Kar, REPL being situated in Begunia, Khurda it comes under the Zone-B and is entitled to sales tax concession for a period of six years initially and not for eight years as certified in the eligibility certificate dated September 24, 1998. The question of extending tax exemption for two additional years will arise only after completion of the original period of tax exemption, i.e., after six years from the date of commercial production. Therefore, extension of tax exemption period by two additional years in the original eligibility certificate dated September 24, 1998 was premature. Since in the present case, the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectricals Pvt. Ltd. [2008] 14 VST 391, held that all priority industries whether small, medium or large would fall within the proviso to entry 43A(1)(b) of the taxfree list and be entitled to avail of sales tax exemption in accordance with IPR 1996. Under entry 43A, the exemption of sales tax on purchase of raw materials, machineries, spare parts thereof, packing materials and on sale of finished products shall be allowed from the date of commercial production to be certified by the Director of Industries, Orissa for a period of seven years, six years and five years if the industrial units are located in zones A , B and C , respectively. In serial No. 43A under item No. (ii) of the third proviso in column (3), it was originally provided as follows: (ii) for priority industries the period of exemption shall be extended by two additional years and the maximum limit for exemption of sales tax shall be 200 per cent of the fixed capital investment and in case of electronic/telecommunication (hardware and software) industrial units the maximum limit of exemption of sales tax shall be 250 per cent of the fixed capital investment. Subsequently, vide Finance Department Notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in exercise of writ jurisdiction. In that view of the matter, we are not inclined to entertain the writ petition, which is thus accordingly dismissed. However, it is open to the petitioner to prefer a statutory appeal against the impugned assessment order along with a petition for condonation of delay. If such an appeal is filed along with a petition for condonation of delay within a period of four weeks from today, the appellate authority shall consider the question of delay taking into consideration that the writ petition was pending in this court since December 10, 2003. Since opportunity is given to the petitioner to file first appeal against the assessment order, the first appellate authority shall consider all factual and legal issues raised by Mr. Sharma, learned counsel for the petitioner, Mr. Kar, learned counsel for the Revenue and Mr. Lal, learned Senior Counsel for opposite party No. 5 giving opportunities of hearing to the parties keeping in view the provisions of section 23(5) of the OST Act read with rule 51 of the OST Rules, 1947. The interim order dated March 18, 2004 shall continue to operate for a further period of four weeks from today. DR. B.S. CHA ..... X X X X Extracts X X X X X X X X Extracts X X X X
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