2008 (8) TMI 811 - HC - VAT and Sales Tax

Court rules in favor of petitioner due to jurisdictional error, directs refund/adjustment of tax, and orders fresh assessment.

Satyam Constructionq Versus Sales Tax Officer, Cuttack-I West Circle, Cuttack

The court ruled in favor of the petitioner, finding that the Sales Tax Officer lacked jurisdiction to pass the assessment order and issue the demand ... Whether the STO, Cuttack-1 Circle, Cuttack has jurisdiction to assess the petitioner for the impugned tax period? Held that:- Since in the present case the petitioner is liable to pay tax under clause (a) of section 9, certificate of registration in his case is to be in form VAT-103, which can be issued provided the petitioner furnishes information and declaration in form VAT-1 to the appropriate registering authority as required under rule 15(8) of the Rules. Learned counsel appearing for the petitioner and Revenue are not in a position to say whether the petitioner has filed any information and declaration in form VAT-1 to the appropriate registering authority as provided under rule 15(8) of the Rules. Therefore, unless the petitioner furnishes the required information as required under the statutory provisions, the certificate in form VAT-103 cannot be issued even if there is a deeming provision and issuance of the certificate is automatic. Thus the impugned assessment order (annexure 1) and the notice of demand (annexure 2) are set aside with a request to the assessing authority of Cuttack I Range, Cuttack, to serve a fresh statutory notice on the petitioner and proceed with the matter for fresh assessment in accordance with law. Issues Involved:1. Jurisdiction of the Sales Tax Officer (STO) in passing the impugned assessment order and issuing the demand notice.2. Legality of tax collection by border check-gate officers on goods purchased from outside the State.3. Issuance of the certificate of registration under the Orissa Value Added Tax Act (OVAT Act) and assignment of TIN number.4. Adjustment or refund of tax collected at the check-gate against the tax liability in regular assessment.Issue-Wise Detailed Analysis:1. Jurisdiction of the STO:The petitioner challenged the jurisdiction of the STO in passing the assessment order and issuing the demand notice. The petitioner's counsel argued that the STO was not the prescribed assessing authority under sub-rule (12)(b) of rule 34 of the OVAT Rules, 2005. The petitioner claimed that the STO lacked jurisdiction as no certificate of registration had been granted under sub-section (5) of section 25 of the Act and no TIN number had been assigned under sub-rule (1) of rule 19 of the Rules. The court noted the contradiction in the petitioner's claims across different writ petitions regarding his registration status. The court concluded that the STO, who passed the impugned assessment order, had no jurisdiction to assess a TIN dealer, which should be done by the assessing authority of the range.2. Legality of Tax Collection by Border Check-Gate Officers:The petitioner argued that the border check-gate officers illegally collected value-added tax (VAT) and entry tax on goods purchased from outside the State, based on estimated prevailing market prices. The court acknowledged the petitioner's grievance that the tax collected at the check-gate should either be refunded or adjusted against his tax liability in regular assessment. The court referenced previous judgments where similar relief was granted, directing that amounts collected at the check-gate be credited to the respective dealers during regular assessment.3. Issuance of Certificate of Registration and Assignment of TIN Number:The petitioner contended that he had not been granted a certificate of registration under the OVAT Act, which affected the jurisdiction of the assessing authority. The court found that the petitioner had not furnished the required information and declaration in form VAT-1 to the appropriate registering authority, as mandated by rule 15(8) of the Rules. The court directed the petitioner to file the necessary information and declaration within four weeks, after which the Revenue was to issue the certificate of registration within two weeks.4. Adjustment or Refund of Tax Collected at the Check-Gate:The court addressed the petitioner's request for the refund or adjustment of tax collected at the check-gate against his tax liability in regular assessment. The court directed that the payments made at the check-gate be taken into account in the fresh assessment, in accordance with the law. The court set aside the impugned assessment order and the notice of demand, requesting the assessing authority of Cuttack I Range, Cuttack, to serve a fresh statutory notice on the petitioner and proceed with the matter for fresh assessment.Conclusion:The court disposed of all five writ petitions, setting aside the impugned assessment order and notice of demand, and directed a fresh assessment by the appropriate assessing authority. The court also directed the petitioner to furnish the required information for the issuance of the certificate of registration and ensured that tax payments made at the check-gate be accounted for in the fresh assessment.