TaxTMI 
TaxTMI 
2015 (6) TMI 1050
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....lled the "O.E.T. Act") and deals in mills-made and handloom clothes. During 2001-2002, he paid Rs. 1,17,008/- through the transporter to the border check gate officer, who issued the common receipt in the name of the transporter as entry tax of the check gate while the goods entered into the State of Orissa. According to the petitioner, on 18.12.1999, a circular bearing No.25118/CT was issued by opposite party No.3 to all concerned officers directing to issue consolidated receipt in respect of one truck of goods to the transporter, who will issue a copy of the receipt to the party while the party will take delivery of goods from the transporter. This circular also depicts that where large number of dealers bring goods in one truck, one receipt with authenticated list of dealers with value of goods, tax component and money receipt number would be handed over to the transporter and one copy of the list would be retained, while another copy would be sent to the concerned Commercial Tax Officer for necessary action at his end. In the instant case, while the petitioner's goods were being transported, the transporter at the check gates paid tax on behalf of owners of goods, including the....
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....ity is perverse. He further submitted that the order of opposite party No.2 is equally bad in law because the decision in the case of M/s. Ram Krishna Raj Kumar (supra) has not been followed, which clearly states that in the absence of statutory notice being served to produce the Books of Accounts, the order of the learned Assessing Authority is wrong and illegal. It was his further submission that the order passed by opposite party No.2 is illegal by not following the circular issued by the Department in 1999, which speaks that the check gate officer issues money receipt to the transporter, who carries goods of a large number of dealers in one truck, and copy of list of dealers is retained while another copy is sent to the concerned C.T.O. to facilitate the adjustment of payment of tax at the entry of goods into the State of Orissa at the time of filing of returns by dealers in the concerned financial year. Submission was also advanced by him that the arbitrary order of the learned Appellate Authority in confirming the order of the Assessing Authority without following the provisions of law and circulars issued by the Department is equally vulnerable, perverse, and without any bas....
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....er to pay the tax of Rs. 1,76,552/-. In his order, the learned Assessing Authority has observed that the petitioner was given opportunity to produce proof of correctness and completeness of the statement and the entry tax paid under section 7(4) of the O.E.T. Act. But, till the date of assessment, the petitioner could not produce and furnish any satisfactory payment of tax at the check gate against the photo copies of the check gate receipts furnished. The learned Appellate Authority while passing the order followed the O.S.T. Rules and O.E.T. Rules and agreed that the decision in the case of M/s. Ram Krishna Raj Kumar (supra) should be followed; but the Xerox copies submitted by the petitioner claiming adjustment were not accepted as these documents are not admissible in legal proceeding unless the same are certified by appropriate authority. He also discussed the necessary circular No.25118/CT dated 18.12.1999 issued by the Commissioner of Sales Tax and opined that the same is meant for unregistered dealer but not for the petitioner. According to him, the petitioner is required to produce the original money receipt along with authentic documents showing value of goods, payment of....
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....uthenticated by the Sales Tax Officer, which should have been accepted for adjustment towards payment of tax in view of the circular issued in 1999 (supra) by the Department. 8. Section 7 under Chapter-III, of the O.E.T. Act has been introduced with amendment on 19.05.2005. Since incident of payment of tax relates to 2001-2002, the law prior to amendment has to be followed. Section 7(2) of the said Act has been introduced in Orissa Entry Tax Act, 2000 vide Orissa Act 5 of 2000. The erstwhile section 7(2) of the O.E.T. Act prescribes in the following manner : "Before any dealer submits a return under subsection (1), he shall, in the prescribed manner, pay in advance the full amount of tax payable by him on the basis of such return as reduced by any tax already paid under Section 10, or of the composition money fixed under the proviso to sub-section (1) of Section 3, as the case may be, and shall furnish along with the return satisfactory proof of such payment; and after the final assessment is made, the amount of tax so paid shall be deemed to have been paid towards the tax finally assessed." 9. Similarly, un-amended section 7(3) of the O.E.T. Act prescribes that if t....
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....thout following the procedure, as depicted under the circular of 1999 issued by the Department (supra), by interpreting the same for its applicability for the unregistered dealer is equally bad in law. The observation of opposite party No.2 that Xerox copy of any document is inadmissible in legal proceeding unless it is certified by the appropriate authority is also equally beyond the legal principles before the quasijudicial authority. Opposite party No.2 has not properly evaluated the copies of documents produced by the petitioner for which his reasons for rejecting the appeal and confirming the order of the Assessing Authority is also vulnerable one. From the foregoing discussion, it must be observed by us that the observation of opposite party Nos.1 & 2 by not accepting the copies of receipts issued to the transporter in compliance with the circular issued by the Department in 1999 (supra) is contrary to section 7(4) of the O.E.T. Act, 1999 (unamended) and, as such, the petitioner is entitled to the benefit of such adjustment. Point No.(i) is answered accordingly. Point No.(ii) : 11. It is evident from the aforesaid discussion that reasonable opportunity to produce the or....
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....twhile provisions under section 16 of the O.E.T. Act, 1999. On further scrutiny, it appears that section 17 of the O.E.T. Act, 1999, as stipulated before it was amended in 19.05.2005, deals with the appeal against the order of the Appellate Authority to the Tribunal. Similarly, the unamended provision of section 18 of the O.E.T. Act, 1999, prior to its amendment, deals with revision by the Commissioner of orders prejudicial to the interest of revenue. Section 19 of the said Act, before its amendment, w.e.f. 19.05.2005 deals with the appeal to the High Court against the order passed under section 18. After amendment, section 19 contains revisional power of the High Court in certain matters where order has been passed under section 7(4) of the O.E.T. Act, 1999. On bird's eye view of these provisions, it shows that second appeal against the order passed under section 16, before its amendment in 2005, lies to the Tribunal under section 17 of the O.E.T. Act, 1999. So, there is forum prescribed under the statute for any aggrieved person, whose right has been affected by the order of the First Appellate Authority. Not only this, but also pre-amendment of section 17 of the O.E.T. Act depic....
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.... be granted under Art.32 and 226 of the Constitution. 13. After extensive discussions, as made above, due to the existence of a right to file a second appeal and revision available to the petitioner against the impugned orders, which are otherwise defective, as discussed above, can be agitated in the second appeal. Apart from this, it is reported in the case of Haribanslal Saharia and another Vs. Indian Oil Corporation Limited and others reported in 2004(I) OLR S.C. page-81, where Their Lordships have been pleased to observe : "In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three categories - (1) Where the writ petition seeks enforcement of any of the fundamental rights; (2) Where there is failure of principles of natural justice; or (3) Where the orders or proceedings are wholly without jurisdiction or the vires of the Act and is challenged". [See Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & Ors. (1998) 8 SCC 11]. 14. With due respect to the above decision, we find that the question of enforcement of any of the fundamental rights, in the present facts and....