TaxTMI 
TaxTMI 
2015 (11) TMI 353
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....994) and Tilakraj Mediratta vrs. State of Orissa, (1992) 86 STC 453. Said Division Bench, vide order dated 02.11.2000 has referred the matter for decision by the Larger Bench with the following observation:- "We have carefully perused the decisions rendered in both the cases and there appears to be conflict in opinion. It is therefore necessary to resolve the controversy by a Larger Bench in the interest of justice." The Reference therefore centers round the basic premise that there is conflict of opinion in the decisions rendered in both the aforesaid cases. 2. The background fact, which requires reproduction for resolving the dispute is as follows:- "Pending Second Appeal before the Sales Tax Tribunal, the petitioner in O.J.C. No. 13383 of 1999, i.e. M/s. Manisha Enterprises moved the Additional Commissioner of Commercial Taxes, Northern Zone, Orissa, Sambalpur for grant of stay against the demand in Revision Case No. II AST - 132/98-99. The Revision having been dismissed vide order dated 10.05.1999, the petitioner came up with the aforesaid writ petition, i.e. O.J.C. No. 13383 of 1999 challenging the validity of the aforesaid order." 3. The petitioner ....
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....hen the selling dealer purchases goods by giving declaration in form XXXIV and then sells the same to another registered dealer but that purchasing dealer is entitled to certain tax concession for certain period and produces the declaration form in Form 1-A, whether the selling dealer contravenes the declaration given by it. Xx. But in interpreting a particular provision, when the language of the provisions is clear and unambiguous, it is not for the Court to search for any hidden intention. Xx. Bearing in mind the aforesaid well settled principles of interpretation of statute and on examining the facts and circumstances of the present case, we answer the question posed by holding that the assessee violated and contravened the provision of section 5(2)(A)(a)(ii) of the Act and there has been a contravention of the declaration given by him. The question is answered in favour of the revenue and against the assessee." Learned counsel for the petitioner in the aforesaid O.J.C. (O.J.C. No. 13383 of 1999) submitted that the decision of this Court in the case of M/s. Sahoo Traders (supra) runs counter to another decision of this Court rendered in Tilakraj Mediratta vrs. State of Orissa....
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....different use or that there has been any contravention of the declaration." On perusal of the aforesaid decisions, the Division Bench of this Court held that there appears to be conflict of opinion and referred the matter to the Larger Bench. Twelve other cases involving similar questions have been tagged subsequently and some of the cases have been referred subsequently for resolution of the same conflict of opinion. 4. We have heard Mr. J.B. Sahoo and other learned counsels for the petitioners in all the cases and Mr. R.P. Kar, learned Standing Counsel, Commercial Tax Department. 5. Perusal of the decisions in the case of State of Orissa vrs. M/s. Sahoo Traders (supra) and the decision in the case of Tilakraj Mediratta vrs. State of Orissa (supra) show that both the decisions relate to two different provisions of the Orissa Sales Tax Act, 1947. While the former relates to provision contained in Section 5(2)(A)(a)(ii) of the Act, the latter relates to Section 5(2)(A)(a)(i) of the Act. Section 5 of the Act deals with rate of tax and Section 5(2) of the Act specifies the meaning of the expression "taxable turnover". It is worthwhile to reproduce the provision of Section 5(2....
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.... the notification itself. It was also not disputed that the certification of the unit is in terms of the requirement of entry 26-A of the list of exempted goods. The Commercial Tax Department raised the issue, if the goods have not been utilized for the purpose indicated in the declarations, deduction to the selling dealer is not to be allowed. Such a stand by the Department was negatived as fallacious by this Court. It was held that, it is not for the selling dealer to go after the purchasing dealer to find out as to in what manner he utilized the goods, which it has purchased on the strength of the Declaration Forms in order to be entitled to the deduction. Such a requirement would fasten an impossible burden on the selling dealer. It is the purchasing dealer, who is getting exemption on fulfillment of certain conditions. Therefore, if goods purchased on the basis of the declaration are put to a different use, the benefit of exemption is to be denied to it, i.e. the purchasing dealer. The selling dealer cannot be faulted if there is any diversion or change of user. 8. In the case of State of Orissa vrs. M/s. Sahoo Traders (supra), the question that arose for consideration is, ....
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....e the question for consideration before the Court was whether the selling dealer was entitled to the deduction from his taxable turnover, if he produced evidence to show that he had sold goods in accordance with Section 5(2)(A)(a)(i) of the Orissa Sales Tax Act, or he would be held liable if the purchasing dealer made a contravention after purchasing the goods and the answer had been in favour of the assessees, who was the selling dealer. But, in the case in hand, the said question really does not arise for consideration. On a plain literal and grammatical meaning being given to the provisions contained in Section 5(2)(A)(a)(ii), the conclusion is irresistible that if the dealer purchases goods by using declaration in Form XXXIV and then resells the same to another registered dealer, but that transaction is not leviable to tax because of tax concession being enjoyed by the said purchasing dealer, it would be a contravention of the declaration given in Form XXXIV as well as the provisions of Section 5(2)(A)(a)(ii) of the Act.........". It is clear from the aforesaid observation that the case of Tilakraj Mediratta vrs. State of Orissa (supra) was placed before this Court in the ca....