TMI Blog2022 (7) TMI 762X X X X Extracts X X X X X X X X Extracts X X X X ..... H COURT]. In that case also the assessment was sought to be reopened by the STO under Section 12 (8) of the OST Act only on the basis of audit objection without forming any independent opinion himself regarding escapement of turnover. Ultimately in The Indure Limited, the impugned notice of reassessment was quashed since the Sales Tax Officer had blindly initiated the assessment proceeding on order to objection without any independent application of mind. The facts of the present case are more or less similar. Here again it is seen from the order of the ACST, that the reopening assessment was made by the STO only on the basis of an audit objection and without any independent application of mind as to whether there had been an esc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e s appeal against the demand raised by the Sales Tax Officer (STO) Puri Circle, Puri for the years 1997-1998 to 2000-01 respectively. 3. While admitting these revision petitions on 17th April, 2013, the following questions of law were framed for consideration by this Court: a. Whether on the facts and in the circumstances of the case, the Sales Tax Tribunal committed error of law and fact particularly when it has held that the assessing authority had mechanically issued the notice under Section 12(8) of the OST ACT? b. Whether on the facts and in the circumstances of the case, the Tribunal is justified in holding that the fore below have not properly interpreted the provisions of law with reference to the exemption allowed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icated to the dealer respondent at a belated stage nearly after 1 and years which has rightly been observed by the learned ACST. Further it was noted by the Tribunal that the STO has also not mentioned the points of objection raised by the AG audit and just mechanically reopened the case under Section 12(8) of the Act for the year 1997-98 to 2000-01 with demand of taxes whereas the dealer respondent eligible to enjoy tax benefits both on purchase of raw materials and on the sale of finished products for a period of seven years from 25.8.97 to 24.8.04. 7. But the Tribunal also found the fault with the ACST for quashing the assessment orders without assigning reasons with reference to the exact objection raised by AG and accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s escaped assessments or has been under assessed-(1) If for any reason the turnover of sales or the turnover of purchases of a dealer has escaped assessment or has been under assessed or has not been assessed due to the tax having been compounded when composition is not permissible under the Act and these rules and it is proposed to assess it, the Commissioner shall serve on the dealer a notice in Form VI calling upon him to furnish a return in Form IV within one calendar month from the date of receipt of such notice. (2) Such notice may also require the dealer to attend in person or by his agent at the office of the authority issuing the notice on the date specified therein and to produce or cause to be produced the accounts and docum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rice Mills (supra). In Indure Limited (supra), this Court also noticed the subsequent decision of Division Bench of this Court in State of Orissa v. Ugratara Bhojanaya (1993) 91 STC 76 ORI which explained the requirement of Section 12(8) of the OST Act in consonance with the decision of the Supreme Court in Uttareswari Rice Mills (supra). 13. In The Indure Limited (supra) the Division Bench of this Court proceeded to hold as under: (a) Here no basis has been disclosed either in the notice or in the records. Rather the records show that the issuance of the notice preceded any recording of an order in the file. So it is clear that the notice has been issued mechanically and at a point of time when there could not be even any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in in pagraph-18 of the Indure Limited (supra), it was explained as under: 18. The importance of this doctrine lies in the fact that if a statutory functionary is vested with a power to act, it is that statutory authority alone who will form the necessary objective opinion for exercising its power. In doing so, it may take into consideration whatever is relevant. As in the instant case audit objection may be a relevant consideration. Taking that objection into consideration, the Sales Tax Officer has to form his objective opinion. But the Sales Tax Officer cannot totally abdicate or surrender his discretion to the objection of the audit party by mechanically re-opening assessment under Section 12(8) as has been done in this case. This ..... X X X X Extracts X X X X X X X X Extracts X X X X
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