TaxTMI 
TaxTMI 
TaxTMI 
1994 (5) TMI 250
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....oach channel, inner approach channel, entrance channel, turning circle/lagoon, general cargo berth, iron ore berth, fertiliser berth, mooring berth and sand trap of port trust. Payments made by the port trust to the assessee were treated as hire charges for transfer of the right to use dredgers for specified period and as such tax was levied thereon purportedly under section 2(g)(iv) of the Act. For the years 1984-85 and 1985-86 assessments were made under section 12(8) of the Act. For the year 1986-87 assessment was completed under section 12(4) of the Act. Demands raised included penalties for the first two years. Assessee's stand that there was no transfer of right of user, which is sine qua non for application of section 2(g)(iv) of the....
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....inion amongst the Members. While Accounts Member held that the amounts were received by way of service charges, Chairman and Judicial Member took a contrary view. Therefore, by majority view the appeals were dismissed. On being moved by applications under section 24(1) of the Act, following questions have been referred to this Court for opinion: (i) Whether, on the facts and in the circumstances of the case, the Orissa Sales Tax Tribunal is correct to hold that the payments received by the assessee during the years in question come under the definition of "sale" as per section 2(g)(iv) of the Orissa Sales Tax Act, 1947 or the same is received towards service charges as claimed by the assessee? (ii) Whether, on the facts and in the circum....
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....erence applications and the writ application it was brought to our notice that applications were filed before the Assistant Commissioner of Sales Tax under section 21 of the Act, for the purpose of cross-examining certain witnesses whose affidavits were already filed. Assessee further prayed for summoning certain officers of the port trust to conclusively establish that the transaction is outcome of a contract of service. According to the Assistant Commissioner no useful purpose would be served by accepting the prayer as the assessments had been completed and it was for the assessee to explain the nature of the transaction. Similar applications were also filed before the Tribunal. The prayer was not accepted by the Judicial Member and the C....
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.... to the appellant's counsel this will leave no room for speculation on the subject. I could not allow the plea. When the agreement is explicit and in writing and I have no doubt with regard to the nature of contract, agreed upon the parties, they need not be called upon to explain their intentions. The applications therefore stand rejected. It is necessary to add here that the learned Assistant Commissioner before whom application under section 21 was also filed along with two affidavits, one from the Project Manager, Dredging Corporation of India and the other from the Assistant Finance Manager, Dredging Corporation of India at Paradeep, when in doubt, could have allowed the plea and summoned the witnesses for examination. But he did not d....
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....sion, either by cross-examining the witness or by independent evidence, but to pre-judge that they would collude is without any material basis. 4.. Section 92 provides that no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives-in-interest, for the purpose of contradicting, varying, adding to, or subtracting from in terms. Here the parties to the agreement do not contradict, vary, add to, or subtract from their terms. Revenue is drawing an inference. The parties to an agreement can be permitted to lead evidence to show what was the essence of the agreement and what was their intention. As indicated above it is open to the Revenue to establish collusion betwee....
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....ropriate authority the same shall be considered in accordance with law. If evidence of persons whom assessee wants to further examine is relevant for the purpose of assessment, the prayer shall be accepted. Instead of answering the references, we remit the matter back to the Tribunal for re-adjudication. The liability of port trust is dependent upon final adjudication by the Tribunal. 6.. It is relevant to mention here that sub-rule (2) of rule 50 of the Orissa Sales Tax Rules, 1947 (in short, "the Rules"), provides that the appellate authority may, before disposing of any appeal, make such further enquiry as it thinks fit or cause further enquiry to be made by the Assistant Sales Tax Officer or the Sales Tax Officer, as the case may be. R....