TaxTMI 
TaxTMI 
TaxTMI 
2013 (3) TMI 568
X X X X Extracts X X X X
X X X X Extracts X X X X
....ocal sales raised a demand of Rs. 91,38,83,592/-and issued corresponding demand notice of even date urging various facts and legal contentions. Alternatively, it is prayed to remand the matter to the Assessing Officer with a direction to pass a de novo assessment order under the OVAT Act after giving opportunity to the petitioner to submit certificates obtaining from the contractee agencies to avail benefit of notification No.629/2008 dated 23.12.2008 in respect of transactions claimed to be exempted from payment of tax under Section 6(2) of the CST Act in its returns. 2. Mr. V. Raman, learned Senior Advocate appearing for the petitioners submitted that petitioner No.1 is a Private Limited Company and registered as a dealer under the provisions of OVAT Act and CST Act. The self-assessment of petitioner No.1-Company completed under Section 39 of the OVAT, which was reopened by way of scrutiny of periodical returns for the period from 1st October, 2008 to 31st January, 2011. Opposite party No.2- Sales Tax Officer, Bhubaneswar-I Circle, Bhubaneswar without having any jurisdiction imposed tax on sales which is beyond the legislative competence of opposite parties. 3. According to Mr.....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... movement of goods in the present case is occasioned from a different State to the State of Odisha on account of the contract between the petitioner and PGCIL or NTPC, as the case may be. As per the mandate of Section 9(1) of the CST Act such sale is liable to be taxed under this Act and the tax so levied shall be collected by that Government in accordance with provisions of sub-section (2), in the State from which the movement of the goods commenced. The impugned order is contrary to provisions of Article 286 of the Constitution of India. The procedure, statutory form and the documents unequivocally demonstrate that the sale is exempted from the payment of CST under Section 6(2) of the CST Act. The order of assessment has been passed without following the principles of natural justice. 4. It was alternatively argued that even assuming for the sake of argument that the petitioner is not entitled to the exemption under Section 6(2) of the CST Act, the sale transaction has expressly been exempted from levy of OVAT under Notification No.629/2008 in case of any adverse finding, opposite party No.2 should allow two months time to obtain requisite certificate. Opposite party No.2 denied....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cation shall be laid before the Assembly for 14 days, if the same is not followed that would not affect the members of the public governed by such Notification. Laying down of Notification as required under Section 17A is not mandatory, but directory. Placement of Notification before the State Legislature is for a limited purpose. Therefore, the impugned Notification is a valid Notification having force with effect from 23rd December, 2008 when it is published in the Orissa Gazette, though the same was laid before the Orissa Legislative Assembly on 07.07.2009. Referring to paragraph 3 of the additional affidavit, it was submitted that no sale or purchase was effected prior to date of Notification dated 23rd December, 2008. Concluding his argument, Mr. V. Raman submitted that the matter should be remanded to the Assessing Officer with a direction to give opportunity to the petitioner to produce before it necessary certificates obtaining from the contractee agencies, as required under Notification in question. 6. Mr. M.S. Raman, learned Additional Standing Counsel appearing for the Revenue acceded to the prayer of the petitioner and suggested to set aside the assessment order and re....
X X X X Extracts X X X X
X X X X Extracts X X X X
....axable sales turnover and evasion of VAT. Therefore, statutory notice in VAT-307 was issued as per the provisions under Rule 50(1) of the OVAT Rules, 2005 and served upon the dealer-petitioner. After availing several opportunities the petitioner-Company caused appearance and produced the books of accounts and documents including the list of claim of exempted sale under Section 6(2) of the CST Act, utilization statement of Government waybills and declaration form 'C', and statement of purchase, sale, payment of VAT and ET. The petitioner was allowed to go through the contents of allegations lodged in the Tax Evasion Report at the stage of assessment. 9. The contents of the Tax Evasion Report as narrated in the assessment order in a nut shell is that the dealer received advance payment from the contractee agencies before the movement of goods from the vendor and the vendor issued sales invoices in favour of the dealer describing it as the consignee on the body of the invoices before movement of goods. There is no endorsement of sale by transfer of documents of title to goods. Upon arrival of goods inside the State, the representative of the dealer receives the goods under consignme....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Central Sales Tax Act. The goods in question coming from outside the State of Odisha are being used in the RGGVY Scheme in terms of the contracts awarded by the PGCIL and NTPC etc. (v) That in the instant case, the outside suppliers dispatched the goods through road transport wherein it has been clearly mentioned the name of the consignor, name of the consignee, i.e., Executive Engineer, Electrical Stores Division, GRIDCO Colony, CESCO, Cuttack-12 as the case may be which was also accompanying the Government waybill by the respective consignee. The physical delivery of goods was taken up by the respective consignee named in the L.R. Hence, at no point of time the dealer has taken the delivery of goods. (vi) That the respective consignee will issue 'C' forms and outside suppliers will also issue E-1 forms which fulfills the conditions stipulated under Section 6(2) of the CST Act. (vii) That the consignor of goods have paid central sales tax to the respective State as per Section 9 of the CST Act from where the movement of goods commence. (viii) That the allegation of reporting officer is not tenable in the eye of law which has been well settled in law and no matter in which S....
X X X X Extracts X X X X
X X X X Extracts X X X X
....gency by the dealer. (f) Then after receipt of the goods by the agency, the dealer raises tax invoice in favour of the agency; (g) The agency does not issue any exemption certificate against transaction made in case of execution of works contract; (h) There is no mention of endorsement of sale by transfer of documents of title to goods; (i) After arrival of goods inside the State under consignment the representative of the dealer receives the goods by endorsing on the back of LR that the goods received in good condition and then the representative of the agency verifies the goods and upon satisfaction receives the goods from the dealers representative again endorsing on the back of the LR that the goods received in good condition, which signifying the said delivery to be another transaction of sale within the State of Odisha exigible to tax under OVAT Act and OET Act. (j) The irregularity of claim of exemption being detected, the dealer in its written submission at the assessment stage stated that it will submit the required exemption certificate against the transactions made under Section 6(2) of the CST Act from the agencies that goods so supplied and utilized in the RGGVY S....
X X X X Extracts X X X X
X X X X Extracts X X X X
....essment basically on two grounds. His first ground of attack is that though the sale transactions in question reflected in returns are inter-state in nature and the same being "in transit sales" are exempted from payment of tax under Section 6(2) of the CST Act, the Assessing Officer has illegally disallowed such exemption. Alternatively it is argued that even if the sales in question are treated as intra-state sales the same are also exempted from payment of OVAT under Notification No.629/08 dated 23.12.2008 which claim of the petitioner should have been allowed by the Assessing Officer. 13. Undisputedly, in the instant case, in its returns, the dealer petitioner has claimed exemption from payment of tax under Section 6(2) of the CST Act on the ground that the sales in question are "in transit sales" and such claim of the dealer had been accepted in the self-assessment. The completed self-assessment under Section 39 of the OVAT Act was reopened on the basis of tax evasion report submitted by the STO, Enforcement on the ground that the dealer is not entitled to avail exemption under Section 6(2) of the CST Act and the transactions in question are intra-state sale and taxable under....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the consigner and the name of the consignee Executive Engineer, Electrical Stores Division, GRIDCO Colony, CESCO, Cuttack-12 as the case may be has been clearly mentioned. The goods were accompanied by the Government waybills of the respective consignee and physical delivery of the goods were taken by the consignee named in the LR. At no point of time, the dealer has taken physical delivery of the goods. 15. The above rival contentions involve serious disputed questions of fact which go to the root of the case being fundamental/germane to decide the nature of the transaction, i.e., whether sale transactions in question are "inter-state" or "intra-state" in nature and the same can only be effectually adjudicated by fact finding authority rather than by this Court in exercise of its writ jurisdiction. 16. Assessing Officer has already recorded its findings on facts and materials available on record. The Assessing Officer having taken a view on the basis of various factual aspects involved in the transactions that the sales in question are intra-state sales, there is no reason to remand the matter to him to examine the issue once again. The petitioner is required to avail the altern....
X X X X Extracts X X X X
X X X X Extracts X X X X
....2008 dated 23.12.2008 in respect of sales in question but for some sufficient reason it could not be able to collect necessary certificates from the Contractee agencies as required under the said Notification and for non-production of such certificates the Assessing Officer denied its claim of exemption from payment of tax, we may not have any hesitation to remand the matter to the Assessing Officer to redo the assessment giving opportunity to the petitioner to produce necessary certificate from the Contractee agencies. But here is a case where the petitioner in its returns claimed exemption under Section 6(2) of the CST Act and produced statutory form 'C' and E-1 to avail the exemption and the same was accepted. Subsequently, only when in a Tax Evasion Report it was alleged that the petitioner was not entitled to avail such exemption from payment of tax and wrongly /erroneously such exemption was claimed and allowed and on examination of books of account and other evidence, the Assessing Officer also came to the same conclusion, the petitioner is trying to change its stand which is contrary to its claim made in the regular returns. It is also not even a case where the Department a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....riod. Under Sub-section (4) of Section 33 of the OVAT Act, the dealer is entitled to file revised return. Section 33(4) runs as follows:- "(4) If any dealer, having furnished returns under sub-section (1) or sub-section (2).- (a) discovers any omission or error in any return so furnished, or (b) where there is requirement for adjustment of the sale price or tax or both, as the case may be, in relation to sale of any goods, makes such adjustment by way of issue of credit note or debit notice, as the case may be, he may file a revised return within three months following the tax period to which the original return relates." 21. There is no provision under the OVAT Act to enable an assessee to revise its claim made in the returns in any manner other than by way of filing revised return within statutory period as provided under Section 33(4) of OVAT Act. 22. The Hon'ble Supreme Court in the case of Goetze (India) Ltd. Vs. Employee State Insurance Corporation, reported in (2008) 8 SC 705 held that the Assessing Officer has no power to entertain fresh claim made by the assessee after filing of the original return other than by filing of revised return. 23. This Court in the....