TMI Blog2016 (12) TMI 1203X X X X Extracts X X X X X X X X Extracts X X X X ..... g authority shall serve a notice in the prescribed form as we find even from the provision of section 7 or subsection (11) and as such, if the authorities have not issued any notice under Section 7(11), then the assessment made by the registered dealer under the provisions of Section 9 will be said to be accepted. Whether the the order impugned of demand has been passed mechanically and without consideration of the second proviso to Rule 3(4) of the Rules? - Held that: - the second proviso stipulates a provision of relaxation in making payment of tax liability where declaration in Form E16 from the buying manufacturer is furnished. The contention of the petitioner is that while passing the order, the assessing authority has not appreciated the second proviso to Rule 3(4) of the Rules, 1999, but we are not in agreement with the said contention for the reason that the petitioner nowhere, has stated as to whether it has given declaration in Form E16 so as to avail the benefit as provided under the second proviso to Rule 3(4) of the Rules, 1999, which is the condition stipulated in the said statutory provision. Prior to 1.7.2012 reassessment for the period of five years was provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 4.3.2015, 6.5.2015, and 22.9.2015 respectively, but the petitioner is not aware as to whether he was assessed on such dates nor the petitioner was intimated by the jurisdictional sales tax authority relating to finalization of the assessment. Since the petitioner is not in receipt of any correspondence relating to the finalization of assessment, the returns filed seems to have been accepted without noticing any irregularity or infirmity covering the tax period from 01.04.2008 to 31.7.2015. (ii) The assessing authority has reopened the assessment even prior to 1.7.2012 so as to cover the period from 1.4.2008 to 31.7.2015 without taking into consideration the tax period from 1.4.2008 to 31.7.2015 and prior to 1.7.2012, the assessing authority, on the basis of the information in his possession, may be within a period of five years from the end of year to which the tax period relates, serve a notice on the dealer, however, the said provision as contemplated under Section 10(1) of Odisha Entry Tax Act, 1999 has been amended w.e.f. 1.7.2012 extending the period from five years to seven years, but the authorities have not gone into this aspect of the matter. (iii) The assessment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tisfied with the reply has passed order putting liability upon the petitioner to pay a sum of ₹ 14,10,71,214.00 towards Odisha Entry Tax for the tax period from 1.4.2008 to 31.7.2015 and penalty for an amount of ₹ 28,21,42,428.00, i.e. twice the amount of tax assessed imposed under Section 10(2) of the Odisha Entry Tax Act and accordingly, the dealer, the petitioner herein, has been directed to pay a sum of ₹ 42,32,13,642.00 as per the terms and conditions of the demand notice. 5. Learned counsel representing the opposite party-State has further submitted that there is no violation of the second proviso to Rule 3(4) since the petitioner being the buying manufacturer has not given declaration under Form 16E and as such, not entitled to get any relaxation in view of the said provision. It has been submitted by him that there is no requirement under law that when the tax is assessed and after finalization of assessment, a communication is being made to the assessee. He further submits that the petitioner has been asked to give reply vide notice dated 23.9.2015 and in terms of that notice, he has made reply on 6.11.2015, but the assessing authority taking into cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brings or causes to be brought into a local area the scheduled goods at such rates as may be prescribed by Government not exceeding twelve percentum of the purchase value of such goods. 9. Section 3 of the Act, 1999 contains a provision to levy tax. Section 7 contains a provision requiring every registered dealer and every dealer who is liable to get himself registered under the Act shall furnish every month to the Commissioner, a return in such form, by such date as may be prescribed and shall furnish along with such return satisfactory proof of payment of tax payment by him under the Act subject to certain conditions. Section 7(10) provides that each and every return in relation to any tax period furnished by a dealer under this section, shall be subject to scrutiny by the assessing authority to verify the correctness of calculation, application of correct rate of tax and interest, claim of deductions, if any, under this Act and full payment of tax and interest payable by the dealer for such period. Sub-Section (11) of Section 7 contains a provision that if any mistake is detected as a result of scrutiny made under sub-section (10), the assessing authority shall serve a notic ..... 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(c) by a registered dealer into any local area and then sold to a manufacturer for use as raw material; Provided that the tax payable under the Act is collected by a manufacture in case of (b) and by such registered dealer in case of (c) and so separately in the cash memo or credit memo or be issued to such manufacturer and a declaration in Form E-15 from buying manufacturer is furnished: Provided further that goods specified in Part I and Part II of the Schedule to the Act when used as raw material directly in manufacture of goods to be exported out of the territory of India shall not be exigible to tax where a declaration in Form E16 from the buying manufacturer is furnished: Provided also that if the buying manufacturer contravenes the provisions of this sub-rule, he shall pay the difference in tax or the tax, as the case may be, had he not been entitled to concessional rate of tax or not to pay any tax under the said sub-rule. Explanation- For the purpose of this sub-rule the word manufacturer shall mean and shall always be deemed to have meant a manufacturer, who is registered under the Act. (5) Notwithstanding anything contained in this ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the manufacturing process i.e. the manufacturing of Pig Iron, Billets, LAM Coke, Crud tar. It is also not in dispute that the petitioner-company had purchased raw materials and consumable both from outside and inside the State of Odisha. The petitioner also effects import of raw materials, i.e. Cooking coal from outside the country. The dealer effects sale of its produces both inside and outside the State of Odisha and the dealer also effects export of finished products, i.e. Pig Iron. The petitioner company has submitted return and on a scrutiny as per the provisions of the Statute for the period from 01.04.2008 to 31.7.2015, it was detected that the company has not paid Odisha Entry Tax on the value of the total coal imported from outside the country soon after entry of the same into the local area. The authority after coming to this conclusion has issued notice to the petitioner for explaining the reasons. The authorized representative of the petitionercompany has taken time thrice and ultimately appeared before the assessing authority on 6.11.2015 and submitted a written submission and also he was heard on that date and order was passed on that date by the assessing authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of Section 9 will be said to be accepted. 13. The 3rd ground taken by the petitioner is that the order impugned has been passed mechanically and without consideration of the second proviso to Rule 3(4) of the Rules. We have quoted the provision of Rule 3(4) of the Rules, 1999 which contains a provision that the goods as specified in Part I and Part II of the Schedule to the Act shall be exigible to tax at a concessional rate of fifty percentum of the rate to which such goods are exigible when such goods are brought (a) for use as raw material by manufacturer on first entry into a local area of the State from outside the State; or (b) for use as a raw material by a manufacturer on first entry into a local area from another local area; or (c) by a registered dealer into any local area and when sold to a manufacturer for use as raw material. We are concerned here with the second proviso, which stipulates a provision of relaxation in making payment of tax liability where declaration in Form E16 from the buying manufacturer is furnished. The contention of the petitioner is that while passing the order, the assessing authority has not appreciated the second proviso to Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specific condition for getting relaxation subject to the condition of submission of a declaration in Form E16 and as such, the ground taken by the petitioner is of no force. 17. So far as the ground taken by the petitioner that the notice dated 23.9.2015 covers the tax period from 01.04.2008 to 31.7.2015 and prior to 1.7.2012, the assessing authority may within the period of five years from the end of the year to which the tax period relates serve a notice on the dealer, however, the said provision has been amended extending the period from 5 years to 7 years and as such, the authority at best could have reopened the assessment covering the tax period from 01.04.2008 to 31.7.2015 because amendment effected by the legislature is not retrospective. We have examined the provisions of law and from its perusal, it is evident that prior to 1.7.2012 reassessment for the period of five years was provided under the statute, but after 1.7.2012 the period of five years has been extended to seven years. Though there is no dispute about the legal proposition, but the petitioner has not raised this point before the assessing officer for scrutinizing this aspect of the matter regarding the per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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