TaxTMI 
TaxTMI 
1986 (1) TMI 377
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.... dealer's turnover" means that part of a gross turnover during any period which dealer's gross turnover during any remains after deducting therefrom: period which remains after deducting therefrom: (a) his turnover during that period on(a) his turnover during that period on- (i)........................ (i)........................ (ii) sales to a registered dealer of (ii) sales to a registered dealer of goods specified in the purchasing dealer's goods specified in the purchasing certificate of registration as being indealer's certificate of registration for tended for resale by him in Orissa and on resale by him in Orissa in a manner sales to a registered dealer of containers that such resale shall be subject to levy and other materials for the packing of of tax under this Act; and on sales to a such goods: registered dealer of containers or other Provided that when such goods are materials for the packing of such used by the registered dealer for purgoods: poses other than those specified in his Provided that for the purpose of certificate of registration, the price of ascertaining the deductions under this goods so utilised shall be included in his item the dealer s....
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....r article 20 of the Constitution cannot be retrospectively enacted so as to make an act an offence which was not an offence at the time of occurrence. V. The taxation laws are subject to article 301 of the Constitution and no impediment by way of taxation or restriction are available to be imposed on the free flow of trade. As the impugned amendment imposes restriction by imposing tax, the same is illegal. VI. As per the provisions of section 5(3) of the Central Sales Tax Act, 1956 as amended by Central Act 103 of 1976, the last sale or purchase of any goods preceding the sale or purchase occasioning the export outside the territory of India shall also be deemed to be in course of export. The present amendment of section 5(2)(A)(a)(ii) of the O.S.T. Act is, therefore, illegal and unconstitutional and ultra vires the said Central legislation. The petitioners further contend that in the decision reported in [1976] 37 STC 157 (State of Orissa v. Joharimal Gajananda) this Court had the occasion to interpret the provisions of section 5(2)(A)(a)(ii) of the O.S.T. Act as it stood prior to the amendment. It was held: "Under the scheme of the Act, sales tax is leviable at....
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.... the Act. We have already recorded a finding agreeing with the Tribunal that there was a resale within the State of Orissa. We have also found that in spite of the fact there were resales within the State, which answer the ingredients of an intra-State sale, the same is not exigible to Orissa sales tax being in the course of export. There is no doubt that if the restriction imposed under the Constitution did not operate, the sales would have been subjected to tax. Our answers to the questions referred to us, therefore, are: (1) On the facts and in the circumstances of the case, the Tribunal was correct in holding that there was no contravention of the declarations given under rule 27(2) of the Orissa Sales Tax Rules and, therefore the proviso to section 5(2)(A)(a)(ii) of the Orissa Sales Tax Act was not attracted. (2) In the facts and circumstances of the case, the sales by the assessee to the Japanese buyer are covered by the embargo under article 286(1)(b) of the Constitution of India read with section 5 of the Central Sales Tax Act and, therefore, are not exigible to sales tax under the Orissa Act." Basing on the aforesaid decisions, the petitioners contend that in thes....
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....en and purchases have been made without Payment of tax. The following cases come under this category: -------------------------------------------------------------------------------- Sl. Case No. Financial Name of the party Goods dealt with No. year by him -------------------------------------------------------------------------------- 1. O.J.C. 1413/78 1974-75 Industrial Minerals Ferro manganese, & Metals ferro chrome, ferrosilicon, slags. 2. O.J.C. 960/79 1975-76 do. do. 3. O.J.C. 1771/79 1976-77 do. do. 4. O.J.C. 1493/80 1973-74 Sagarmal Agarwalla Motor oil, lubricants, kendu leaves, tyres, tubes. 5. O.J.C. 1494/80 1974-75 do. do. 6. O.J.C. 1495/80 1975-76 do. do. 7. O.J.C. 1982/80 1975-76 Sanwarmal HariPetrol, diesel, lubriprasad cants, tyre and tubes, cement, kendu leaves, motor parts. 8. O.J.C. 1983/80 1973-74 do. do. 9. O.J.C. 1984/80 1974-75 do. do. -------------------------------------------------------------------------------- Prior to the amendment of form No. XXXIV, the declaration was given in the following manner: "Certified that the goods ordered in my/our purchase order No............... dated....................
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....urther that no second or subsequent supply of declaration forms shall be made to any such dealer unless he furnishes a true copy of account certified by him under his signature of the forms last supplied to him as maintained in form VII-A referred to in clause (v). (iii) Before furnishing the declaration to the selling dealer the purchasing dealer or a person authorised by him in this behalf shall fill in all required particulars in the form, affix his usual signature in the space provided in the form for this purpose. Thereafter, the portion marked 'original' shall be made over by him to the selling dealer and the portion marked duplicate' shall be submitted to the Sales Tax Officer, who issued the forms, while rendering accounts regarding use of declaration forms before him. The purchasing dealer shall only retain the counterfoil of each declaration form. * * *" In view of the above provisions, in order to get exemption under section 5(2)(A)(a)(ii), a declaration in form No. XXXIV shall be furnished by a dealer. There is no other form prescribed for claiming deduction. A registered dealer has to furnish the declaration in the prescribed form to be obtained from the autho....
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....an Iron and steel Traders goods. (declared goods) 2. O.J.C. 677/78 1975-76 do. do. 3. O.J.C. 1297/80 1970-71 S.L. Gupta & Sons do. 4. O.J.C. 1521/80 1977-78 Orissa Steel Cordo. poration 5. O.J.C. 1522/80 1978-79 do. do. 6. O.J.C. 1132/82 1977-78 Rataria Brothers Rice, atta, maida, suji, iron and steel conveyor belt. (declared goods) 7. O.J.C. 188/83 1970-71 Orissa Steel CorIron and steel poration goods. (declared goods) 8. O.J.C. 189/83 1971-72 do. do. ---------------------------------------------------------------------------------------- Except serial No. 5, i.e., O.J.C. 1522/80, the rest are also covered under category (1) as the declaration forms were furnished in the unamended form No. XXXIV. In these cases, the contention of the assessees is that under section 14-B of the O.S.T. Act read with rule 42-A of the O.S.T. Rules and section 15 of the C.S.T. Act, in case of declared goods, the dealer is entitled to get refund of the Orissa sales tax paid by him. Section 14-B of the O.S.T. Act is as follows: "14-B. Refund in case of inter-State trade or commerce.-The Commissioner may refund to such person, in such manner and subject to such conditi....
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....spect of the sale of such goods in the course of inter-State trade or commerce, the tax levied under such law shall be reimbursed to the person making such sale in the course of inter-State trade or commerce in such manner and subject to such conditions as may be provided in any law in force in that State; (c) where a tax has been levied under that law in respect of the sale or purchase inside the State of any paddy referred to in sub-clause (i) of clause (i) of section 14, the tax leviable on rice procured out of such paddy shall be reduced by the amount of tax levied on such paddy; (d) each of the pulses referred to in clause (vi-a) of section 14, whether whole or separated and whether with or without husk, shall be treated as a single commodity for the purposes of levy of tax under that law." The petitioners contend that as the assessment was made much after the payment of the Central sales tax, it was impossible for them to have applied for refund of the Orissa sales tax within twelve months from the date of payment. The impugned amendment creates an impossible situation and condition to be fulfilled and is, therefore, bad in law. In reply, it is submitted on behalf....
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....r by him. ------------------------------------------------------------------------------------ 1. O.J.C. 411/78 1977-78 MMTC of India Ltd. Iron ores. 2. O.J.C. 1855/80 1979-80 Singhbhum Mining Minerals. Dev. Corpn. (P.) Ltd. 3. O.J.C. 1891/80 1978-79 Sanwarmal HariKendu leaves, prasad timber, lubricants, bamboo mats. 4. O.J.C. 1326/81 1979-80 Utkal Industries & Coltar & empty Trading Co. barrel. 5. O.J.C. 1327/81 1978-79 do. do. 6. O.J.C. 2429/81 1977-78 Howrah Motor Co. Motor parts, batteries. 7. O.J.C. 363/82 1978-79 Industrial Minerals Ferro manganese, & Metals ferro chrome, etc. 8. O.J.C. 1131/82 1978-79 Howrah Motor Co. Motor parts, batteries. 9. O.J.C. 2360/82 1980-81 Industrial Minerals Ferro chrome. & Metals 10. O.J.C. 1673/82 1979-80 do. do. 11. O.J.C. 28/83 1979-80 Howrah Motor Co. Motor parts, batteries, tyres, tubes, lubricants. 12. O.J.C. 401/83 1980-81 do. do. 13. O.J.C. 402/83 1981-82 Metalloy India Mineral ores. 14. O.J.C. 1647/83 1981-82 Industrial Minerals Ferro chrome, etc., & Metals mineral ores, scrap iron. -----------------------------------------------------------------------------------On behalf of the p....
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....confusion created by the petitioners is worst confounded when the declarant on the basis of the declaration does not pay the tax to the seller though in the event of non-submission of declaration he should have paid the tax to the seller. At any event, the incidence is always on the seller. The amended Act has not put any embargo on the seller in choosing the purchaser. In the event the purchaser intended to effect the sale in course of inter-State trade/commerce to any foreign buyer, it was open to him to effect the purchase without furnishing the statutory declaration. It was further submitted that the legislature has not prevented the dealer from making the purchase by paying tax and thereafter selling the same in course of inter-State trade/export. The Legislature under the amended Act has vindicated the single point levy and never intended or desired to tax the export/inter-State sale. Thus, the submission that this amended law is hit by article 286(1) is based on the misconception that the Legislature intended to impose tax on export/ inter-State sale. It is now well-settled that the power to impose taxes on the sale or purchase of goods, other than newspapers, belonging t....
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.... these bans operate only for the purpose of curtailing the taxing powers of the State and not for any other purpose. See [1976] 37 STC 187 (Bom) (N.D. Georgopoulos v. State of Maharashtra). Relying on the decisions reported in [1976] 37 STC 157 (Orissa) (State of Orissa v. Joharimal Gajananda) and [1976] 38 STC 189 (Orissa) [FB] (M.M.T.C. of India Ltd. v. State of Orissa) the petitioners contend that in the present cases the assessees purchased goods by giving declaration for resale in Orissa and in fact resale was inside Orissa. So they are entitled to the benefits of the above two decisions and the transactions of the petitioners being in course of interState trade or commerce, those cannot be made liable to sales tax as now demanded. On the other hand, it is contended by the opposite parties that no doubt what the petitioners contend is true if the declaration is given in unamended form, i.e., resale in Orissa. But in view of the amendment of section 5(2)(A)(a)(ii) and form No. XXXIV, the resale is to be in Orissa in the manner that such resale shall be subject to levy of tax under the O.S.T. Act. By giving the above declaration/undertaking, i.e., to resell in Orissa in a man....
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....hase tax under section 16." The petitioners contend that the above decision has no application to the facts and circumstances of the present cases. Under the scheme of the Act, the taxable event is postponed until the registered dealer sells the goods to an unregistered dealer or a consumer, or in breach of the undertaking given. Law is well-settled that the competent legislature can enact law after removing the infirmities or deficiencies as pointed out by the Court. All that is to be seen in such cases is that the amended law is within the competence of the legislature. Powers of the State Legislature under entry 54 of List II of the Seventh Schedule to the Constitution are plenary. The impugned amended Act is an attempt by the State Legislature to ensure the single point levy by nullifying the effect of the two decisions of this Court. The question is whether such action is within the competence of the State Legislature and is in conformity with article 286 of the Constitution of India. It is the contention of the petitioners that the goods were meant for resale in Orissa and in fact were resold inside Orissa. The State Legislature has power to impose tax on the sale or....
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....e of Rajasthan) has been cited on behalf of the petitioners. But this decision is not of much help. The decision is in the same line as the decision of this Court reported in [1976] 37 STC 157 (State of Orissa v. Joharimal Gajananda). On the other hand, the following observation has been made in the very same decision which demolishes the arguments advanced on behalf of the petitioners: "The only consequence of the resales being sales in the course of inter-State trade or commerce was that they were not taxable under the State legislation. But there is no provision in the State Act which requires that in order that an assessee may be exempt from purchase tax in respect of purchase of goods made by him against a declaration in form No. S.T. 17, he must resell the goods within the State in such a manner that such resale becomes exigible to tax under the State legislation." The other argument advanced that the amendment is violative of article 301 of the Constitution of India does not cut much ice. According to article 301, subject to the other provisions of this part (Part XIII), trade, commerce and intercourse throughout the territory of India shall be free. "Freedom" in th....