TaxTMI 
TaxTMI 
TaxTMI 
2016 (12) TMI 1203
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....has not been paid at the appropriate rate. According to the petitioner, the tax has been paid in accordance with the statutory provision, but without considering this aspect of the matter, a notice was served upon the petitioner-company on 29.3.2015, in Form-E32, under the provisions of sub-rule (1) of Rule 15 read with Section 10 of the Odisha Entry Tax Act alleging escapement of assessment of tax for the tax period from 1.4.2008 to 31.7.2015. The petitioner in pursuance to the said notice has appeared before the authorities and tried to satisfy them by stating that no tax under the heading of "Odisha Entry Tax" has been evaded by it for the period in question, but according to the petitioner the authorities without appreciating the defence statement filed by it, has passed order on the same date i.e. on 6.11.2015 putting liability of penalty on the petitioner amounting to Rs. 42,32,13,642.00 vide order of assessment dated 16.11.2014, which is impugned in this writ petition. 3. The petitioner has challenged the order of assessment on the grounds (i) The notice stipulates the period from 1.4.2008 to 31.7.2015, on 30.12.2011, 30.3.2012, 6.6.2012, 4.3.2015, 6.5.2015, and 22.9.2015....
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.... Act from the very day the imported goods entered the local area and the admitted position in this case is that the goods have been imported and brought into the territory of the State of Odisha for the financial year starting from the year 2008 up to July, 2015, but the petitioner has not paid entry tax on the total import of raw material, rather the entry tax has only been paid only on the used materials and as such, the assessing authority after taking into consideration this aspect of the matter has directed to pay the balance entry tax upon the rest of the raw materials which admittedly has been purchased by the petitioner and as such, liable to pay entry tax under the provisions of the Odisha Entry Tax Act. Since the petitioner is ready to pay right from the assessment year 2008 till July, 2015, a notice was issued to the petitioner on 23.9.2015 asking to reply regarding escapement of assessment of tax for the tax period from 1.4.2008 to 31.7.2015, but the petitioner could not be able to furnish satisfactory reply regarding the balance raw materials upon which the entry tax has not been paid. Hence, the assessing authority being not satisfied with the reply has passed order p....
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....ed counsel for the parties and perused the materials available on record. 7. Before appreciating the argument advanced on behalf of the parties, it is relevant to have a discussion regarding the relevant provisions of law, which have got bearing with the issue involved in this case. 8. In the State of Odisha, an Act has come in the name of "Orissa Act 11 of 1999" providing provision for the levy and collection of tax on the entry of goods into the local areas of the State of Odisha for consumption, use or sale therein and matters incidental thereto and connected therewith. The said Act has come into force by virtue of a notification issued by the State Government after getting assent of His Excellency the Governor of Odisha published Orissa Gazettee in Extraordinary No.1408 dated 27.9.1999 and the purpose behind enactment of the said Act is to provide for the levy of a tax on entry of goods into the local area for consumption, use or sale therein as enjoyed under Entry 52 of the List II of the Seventh Schedule to the Constitution of India with the objective to levy tax on every dealer in Schedule goods or any person who brings or causes to be brought into a local area the schedul....
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....nsel for the petitioner has given much emphasis and as such, the same is quoted hereunder: "3. Rate of Tax- The tax payable by a dealer or any other person under the Act shall subject to the Explanation hereunder be at the following rates: (1) x x x (2) Subject to the provisions of sub-rule (4) the goods specified in part II of the Schedule to the Act shall be exigible to the tax at the rate of 2% of the purchase value. (3) Subject to the provisions of sub-rule (4), the goods specified in Part I of the Schedule to the Act shall be exigible to the tax at the rate of 1% of the purchase value. (4) Goods specified in Part I and II of the Schedule to the Act shall be exigible to tax at a concessional rate of fifty percentum of the rate to which such goods are exigible under sub-rule (3) and sub-rule (2) respectively of this rule, when such goods are brought- (a) for use as raw material by the manufacturer on first entry into a local area of the State from outside the State; or (b) for use as raw material by a manufacturer on first entry into a local area from another local area; or (c) by a registered dealer into any local area and then sold to a manufacturer for ....
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.... a local area from another local area; or (c) by a registered dealer into any local area and then sold to a manufacturer for use as raw material; Provided that the tax payable under the Act is collected by a manufacture in case of (b) and by such registered dealer in case of (c) and so separately in the cash memo or credit memo or be issued to such manufacturer and a declaration in Form E-15 from buying manufacturer is furnished. Provided further that goods specified in Part I and Part II of the Schedule to the Act when used as raw material directly in manufacture of goods to be exported out of the territory of India shall not be exigible to tax where a declaration in Form- E16 from the buying manufacturer is furnished. It is also not in dispute that the petitioner-company has imported the raw materials for the purpose for levying it in the manufacturing process i.e. the manufacturing of Pig Iron, Billets, LAM Coke, Crud tar. It is also not in dispute that the petitioner-company has imported raw materials for the purpose for levying it in the manufacturing process i.e. the manufacturing of Pig Iron, Billets, LAM Coke, Crud tar. It is also not in dispute that the petit....
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....itioner and the communication can only go in a situation when on scrutiny it will be found that the same is not in order or there is arithmetical error. Under the Taxation Rule the assessee is required to furnish self assessment and the authority is required to assess the same and there is no provision provided under the Act to communicate in case of acceptance of the assessment. Although under the provision of Orissa Value Added Act under Section 38 read with Section 7(10) each and every return in relation to any tax period furnished by a registered dealer shall be subject to scrutiny by the assessing authority to verify the correctness of the calculation, application of correct rate of tax and interest etc. and in case of any mistake, detected in course of scrutiny, the assessing authority shall serve a notice in the prescribed form as we find even from the provision of section 7 or subsection (11) and as such, if the authorities have not issued any notice under Section 7(11), then the assessment made by the registered dealer under the provisions of Section 9 will be said to be accepted. 13. The 3rd ground taken by the petitioner is that the order impugned has been passed mechan....
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....C 322, Deep Chand v. State of Rajasthan, AIR 1961 SC 1527, and State of U.P. v. Singhara Singh, AIR 1964 SC 358. Even as on date, the same is a good law since it has been followed even in the case of Zuari Cement Ltd. v. Regional Director, E.S.I. Corporation and another, (2015) 7 SCC 690 wherein paragraph 15 it has been held as follows : "15. Where there is want of jurisdiction, the order passed by the Court/ tribunal is a nullity or non-est. What is relevant is whether the Court had the power to grant the relief asked for. ESI Court did not have the jurisdiction to consider the question of grant of exemption, order passed by the ESI Court granting exemption and consequently setting aside the demand notices is non-est. The High Court, in our view, rightly set aside the order of ESI Court and the impugned judgment does not suffer from any infirmity warranting interference." 16. In view of the aforesaid settled proposition of law, we are of the considered view the second proviso to Rule 3(4) of the Rules, 1990 stipulates a specific condition for getting relaxation subject to the condition of submission of a declaration in Form E16 and as such, the ground taken by the petitioner i....