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2015 (6) TMI 1050 - ORISSA HIGH COURT

2015 (6) TMI 1050 - ORISSA HIGH COURT - [2016] 87 VST 313 (Ori) - Whether the petitioner can take the benefit of copy of money receipt issued to the transporter carrying his goods by the check gate officer while assessing the tax payable by the petitioner - Held that:- the order of the learned First Appellate Authority confirming the order of the learned Assessing Authority with the observation that Xerox copies of documents are not admissible without following the procedure, as depicted under t .....

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er for which his reasons for rejecting the appeal and confirming the order of the Assessing Authority is also vulnerable one. From the foregoing discussion, it must be observed by us that the observation of opposite party Nos.1 & 2 by not accepting the copies of receipts issued to the transporter in compliance with the circular issued by the Department in 1999 is contrary to section 7(4) of the O.E.T. Act, 1999 (unamended) and, as such, the petitioner is entitled to the benefit of such adjustmen .....

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for adjustment of payment at the check gate. Mere observation of the learned Assessing Authority that the petitioner was given opportunity to produce the satisfactory proof for completeness and correctness of the document submitted is without any compliance as per law. On the other hand, we are of the opinion that reasonable opportunity has not been given to the petitioner to produce satisfactory proof of payment of tax to the transporter or incidence of payment of tax towards adjustment of tax .....

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oint Nos.(i) & (ii), we are of the considered view that there is no compliance with the provisions of the O.E.T. Act and the circular issued by the Department under the relevant rules framed under the said Act. Therefore, it must be held that the impugned orders of the Assessing Authority and the Appellate Authority have been passed without jurisdiction. Although alternative remedy as per the decision reported in Titaghur Paper Mills Co. Ltd. Vs. State of Orissa [1983 (4) TMI 49 - SUPREME Court] .....

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incidence of payment of tax for the year 2001-2002 within a period of three months from the date of receipt of copy of this order after giving reasonable opportunity to both parties to produce their respective evidence. - Petition disposed of - W.P.(C) No.2922 of 2006 - Dated:- 22-6-2015 - Indrajit Mahanty and D.P. Choudhury, JJ. For Petitioner : M/s. N. Paikray, B.P. Mohanty, A.N. Ray, K.K. Sahoo, P.K. Mishra & B. Das For Opp. Parties : Mr. R.P. Kar, Standing Counsel JUDGMENT This writ app .....

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rix leading to the case of the petitioner is that he was a registered dealer under the Orissa Sales Tax Act, 1947 (hereinafter called the O.S.T. Act ) as well as Orissa Entry Tax Act, 1999 (hereinafter called the O.E.T. Act ) and deals in mills-made and handloom clothes. During 2001-2002, he paid ₹ 1,17,008/- through the transporter to the border check gate officer, who issued the common receipt in the name of the transporter as entry tax of the check gate while the goods entered into the .....

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value of goods, tax component and money receipt number would be handed over to the transporter and one copy of the list would be retained, while another copy would be sent to the concerned Commercial Tax Officer for necessary action at his end. In the instant case, while the petitioner s goods were being transported, the transporter at the check gates paid tax on behalf of owners of goods, including the petitioner, and they were issued with copy of money receipt for calculation of tax as well a .....

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ax at the check gate to the tune of ₹ 1,13,178/- and without following the provisions of law and circular issued by the Department. Against the order of the learned Assessing Authority, the petitioner preferred appeal before opposite party No.2, who also did not afford proper opportunity to the petitioner in terms of proviso to sub-section (4) of section 7 of the O.E.T. Act and, in the absence of notice under Form No.E-4 and without following the judgment of this Court dated 23.06.2004 pas .....

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T. Act. So, the petitioner challenges both the orders passed by opposite party Nos.1 & 2 in this writ petition to quash the same. 3. Learned counsel appearing for the petitioner challenging the orders of opposite party Nos.1 & 2 submitted that the order passed by the learned Assessing Authority without issuance of any statutory notice to the petitioner for production of Books of Accounts for examining the correctness and completeness is illegal, as section 7(4) of the O.E.T. Act requires .....

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n followed, which clearly states that in the absence of statutory notice being served to produce the Books of Accounts, the order of the learned Assessing Authority is wrong and illegal. It was his further submission that the order passed by opposite party No.2 is illegal by not following the circular issued by the Department in 1999, which speaks that the check gate officer issues money receipt to the transporter, who carries goods of a large number of dealers in one truck, and copy of list of .....

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and without any basis for which the same should be quashed. 4. On the contrary, learned counsel appearing for the opposite parties submitted that the writ petition is not maintainable when there is provision under section 17 of the O.E.T. Act read with section 23 of the O.S.T. Act to prefer appeal against the order of the First Appellate Authority. He submitted that opportunity was given by the learned Assessing Authority to the petitioner, as evident from the order of opposite party No.1; but .....

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emerge for consideration: i) Whether the petitioner can take the benefit of copy of money receipt issued to the transporter carrying his goods by the check gate officer while assessing the tax payable by the petitioner ? ii) Whether reasonable opportunity has been given to the petitioner in accordance with law to produce evidence so as to make the impugned orders valid and legal ? iii) Whether the writ petition is at all maintainable in the eye of law ? Point No.(i) : 6. On going through the im .....

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isallowed by him, and original check gate money receipts for ₹ 3,830/- were only allowed by the Assessing Authority for deduction from the tax computed. He did not accept the other photo copies of the consolidated receipts in the name of the transporter and other forms submitted by the petitioner, for which, as per section 7(2) of the O.E.T. Act, to the best of his judgment passed the order to pay the tax of ₹ 1,76,552/-. In his order, the learned Assessing Authority has observed tha .....

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M/s. Ram Krishna Raj Kumar (supra) should be followed; but the Xerox copies submitted by the petitioner claiming adjustment were not accepted as these documents are not admissible in legal proceeding unless the same are certified by appropriate authority. He also discussed the necessary circular No.25118/CT dated 18.12.1999 issued by the Commissioner of Sales Tax and opined that the same is meant for unregistered dealer but not for the petitioner. According to him, the petitioner is required to .....

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roblems faced by dealers and transporters, for proper implementation of the O.E.T. Act, the said circular was issued. In para-3, it has been clearly mentioned that if there are more than one unregistered dealers get their goods transported in one truck, separate receipt should be granted by the check gate officer as far as possible. Where a large number of dealers bring goods in one truck, one receipt with authenticated list of dealers with value of goods, tax paid and money receipt number / dat .....

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nd copy of such receipt must be available to the dealers so that they can make adjustment of the tax computed for that year for the sake of implementation of the O.E.T. Act and Rules made thereunder. It must be remembered that in the taxing jurisprudence, no liberal interpretation can be made, but strict interpretation of the statute should be adhered to. So, the view of opposite party Nos.1 & 2 that Xerox copies available to the dealer are not admissible without being authenticated by the c .....

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authenticated by the Sales Tax Officer, which should have been accepted for adjustment towards payment of tax in view of the circular issued in 1999 (supra) by the Department. 8. Section 7 under Chapter-III, of the O.E.T. Act has been introduced with amendment on 19.05.2005. Since incident of payment of tax relates to 2001-2002, the law prior to amendment has to be followed. Section 7(2) of the said Act has been introduced in Orissa Entry Tax Act, 2000 vide Orissa Act 5 of 2000. The erstwhile s .....

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sment is made, the amount of tax so paid shall be deemed to have been paid towards the tax finally assessed. 9. Similarly, un-amended section 7(3) of the O.E.T. Act prescribes that if the Assessing Authority is satisfied that any return submitted under sub-section (1) is correct and complete, he shall assess the dealer on the basis thereof. Section 7(4) of the said Act before amendment stipulates that if no return is submitted by the dealer under sub-section (1) within the period prescribed or i .....

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en adequate opportunity for proving the correctness and completeness of the returns submitted by him, but nothing is found from the order that the return submitted by the petitioner is incorrect or incomplete when he has submitted the photo copies of the consolidated receipts in the name of the transporter containing the name of the petitioner. So, proviso to sub-section (4) of section 7 of the O.E.T. Act before amendment is pre-condition to pass the best of the judgment by the learning Assessin .....

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t in spite of opportunity given to prove the correct and complete document by the petitioner, the doctrine of passing the best judgment as per section 7(4) of the erstwhile O.E.T. Act, 1999 cannot be said to have been complied with. Be that as it may, the order of the learned Assessing Authority (opposite party No.1) having not followed the provisions of the O.E.T. Act is vulnerable. 10. Similarly, the order of the learned First Appellate Authority confirming the order of the learned Assessing A .....

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asijudicial authority. Opposite party No.2 has not properly evaluated the copies of documents produced by the petitioner for which his reasons for rejecting the appeal and confirming the order of the Assessing Authority is also vulnerable one. From the foregoing discussion, it must be observed by us that the observation of opposite party Nos.1 & 2 by not accepting the copies of receipts issued to the transporter in compliance with the circular issued by the Department in 1999 (supra) is cont .....

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s of Accounts and the original money receipts in support of his claim for adjustment of payment at the check gate. Mere observation of the learned Assessing Authority that the petitioner was given opportunity to produce the satisfactory proof for completeness and correctness of the document submitted is without any compliance as per law. On the other hand, we are of the opinion that reasonable opportunity has not been given to the petitioner to produce satisfactory proof of payment of tax to the .....

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the Orissa Gazettee, Extraordinary, No.1509 dated 04.11.1999. Such Act in Chapter-III enshrines about the assessment, payment, recovery and collection of tax vide section 7 of the O.E.T. Act. Such provision was amended by Orissa Act 10 of 2005 w.e.f. 19.05.2005. Since the assessment year relates to 2001-2002, we can discuss unamended provisions of section 7 of the said Act. Section 7(2) of the O.E.T. Act was substituted by amendment vide Orissa Act 5 of 2000. Under such provisions, the dealer c .....

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ated that the assessment year being 2002-2002, the unamended provisions of section 16 will apply. So, the impugned order of the Appellate Authority has been passed as per erstwhile provisions under section 16 of the O.E.T. Act, 1999. On further scrutiny, it appears that section 17 of the O.E.T. Act, 1999, as stipulated before it was amended in 19.05.2005, deals with the appeal against the order of the Appellate Authority to the Tribunal. Similarly, the unamended provision of section 18 of the O. .....

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cond appeal against the order passed under section 16, before its amendment in 2005, lies to the Tribunal under section 17 of the O.E.T. Act, 1999. So, there is forum prescribed under the statute for any aggrieved person, whose right has been affected by the order of the First Appellate Authority. Not only this, but also pre-amendment of section 17 of the O.E.T. Act depicts that within a period of 60 days any person, either revenue or the person affected by the order passed by the First Appellat .....

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erstwhile original O.E.T. Rules, 1999 was dealing with appeal and revision about the procedure adopted by the Appellate Authority and the Revisional Authority. According to that Rule 23 of the erstwhile O.E.T. Rules, 1999, except for the condition expressly provided in section 16 of the Act in respect of the appeal and in section 18 of the Act in respect of revision, the provisions under the Sales Tax Act and the Sales Tax Rules for appeals and revisions shall, mutatis mutandis, apply to the ap .....

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fter hearing of the appeal is complete. So, prior to 2005, the Sales Tax Act and Rules will apply, mutatis mutandis, even if the appeal has been filed under the O.E.T. Act, 1999. When there is specific provision already made for the second appeal before the Tribunal and the appellate forum can take into consideration all the matters agitated by the appellant having wide jurisdiction, the present petition under Art.226 and 227 of the Constitution of India is not maintainable. Our view is fortifie .....

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, which are otherwise defective, as discussed above, can be agitated in the second appeal. Apart from this, it is reported in the case of Haribanslal Saharia and another Vs. Indian Oil Corporation Limited and others reported in 2004(I) OLR S.C. page-81, where Their Lordships have been pleased to observe : In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three categories - (1) Where the writ petition se .....

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