TaxTMI 
TaxTMI 
2022 (4) TMI 725
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....ainst declarations in Form IA out of the paper purchased by furnishing declaration in Form 34 inside the State of Odisha as being in contravention of the 2nd proviso to Section 5A(a)(ii) of the Orissa Sales Tax Act, 1947 (OST Act)? (ii) Whether the Tribunal was justified in not considering Sections 6 and 7 read with Sections 4(1) of the OST Act? (iii) Whether the Tribunal was justified in sustaining the orders of assessment passed under the Odisha Additional Sales Tax Act (OAST) for which no separate notice under Section 12(8) of the OST Act read with the OAST Act had been issued? (iv) Whether in the facts and circumstances of the case, the Tribunal was justified in confirming the orders of assessment passed under the OAST Act leaving additional sales tax under Section 5(2)(A)(a)(ii) of the OST Act which did not form part of the gross turnover under the OST Act? 3. At the outset, Mr. R.P. Kar, learned counsel for the Petitioner stated that barring question No.(i) above, he is not pressing the other questions, including those relating to the OAST Act as the tax amount involved is insignificant. 4. Although STREV No.30 of 2008 is yet to be form....
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.... contravened the declaration in Form 34. It was not in dispute that the purchasing dealer had purchased the goods in Form IA and sales to that effect were exempted under Sl.No.26A of the Tax-Free list. It was observed that the enjoinment of Form IA was consistent to a particular set of traders and such concession could not be described as 'tax free'. As far as 1982-83 is concerned, the demand was reduced to Rs. 1680/- with the penalty amount of Rs. 200/-. As far as 1985-86 is concerned, the ACST reduced it to Rs. 1, 22,478.36 and the penalty was reworked as Rs. 9623.62. 9. The State thereafter preferred appeals before the Tribunal. Two separate sets of orders dated 23rd September, 1996 in both sets of appeal by the State. The Tribunal allowed the appeals following a judgment of this Court in State of Orissa v. M/s. Sahoo Traders (decision dated 22nd December, 1994 in SJC No.27 of 1990). The appeals were accordingly allowed by the Tribunal. 10. Mr. R.P. Kar, learned counsel appearing for the Petitioner in both the cases argued that the judgment in the State of Odisha v. Sahoo Traders (supra) was contrary to the judgment of a coordinate Bench in Gurudev Singh Ray v. Authorized ....
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....resale "in Odisha in the manner that such resale shall be subject to the levy of tax under this Act." 14. The above submissions have been considered. The charging provision as far as the OST Act is concerned, is Section 4 which reads as under: "4 (1) Incidence of Taxation: Subject to the provisions of section 3-B, 5, 6, 7 and 8 one with effect from such date as the State Government, may, by notification in the gazette, appoint, being not earlier than 30 days after the date of the said notification every dealer whose gross turn over during the year immediately preceding the date of commencement of the (Orissa Sales Tax (Amendment) Act, 1981) exceeded (Rs. 50,000) shall be liable to pay tax under this Act on sales and purchases affected after the date so notified." 15. Section 5 of the OST Act relates to rate of tax. The relevant portion of the same reads as under: "5. Rate of Tax. (1) The tax payable by a dealer under this Act shall be levied on his taxable turnover at such rate, not exceeding sixteen percent), and subject to such rate, not (exceeding sixteen percent), and subject to such conditions as the State Government, may from time to ....
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....to such conditions and exceptions, if any exempt from tax the sale (or purchase) of withdraw any such exemption". "7. Power of the State Government to exempt dealers from tax and to dealer payment of tax :- Notwithstanding anything to the contrary, in this Act, the State Government may subject to such restrictions and conditions including conditions as to registration and registration fees, by notification exempt in whole or in part, any class of dealers from the payment of tax or allow any class of dealers to defer payment of tax." 18. This has to be also read with Entry 26A of the tax free goods list in terms of the notification dated 23rd April, 1976 under Section 6 of the OST Act. Entry 26A reads as under: "26-A. Purchase or sale of- (a) raw materials that is to say, goods which directly go into the composition of the finished products; (b) machinery and spare parts thereof actually required for starting and maintaining the unit; (c) packing materials required for packing the finished products in the same form as manufactured by the unit. When sold to or purchased by a registered dealer who is certified by the Director of Industries, Orissa or ....
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....The scope of Section 5(2)(A)(a)(i) of the OST came up for consideration in the decision of the Division Bench of this Court Tilakraj Mediratta (supra), the relevant portion of which reads as under: "8. Under Section 5(2)(A)(a)(i) the sale of any goods notified from time to time as tax-free under Section 6 is deducted from the gross turnover of a selling dealer for the purpose of computation of taxable turnover. In other words, a selling dealer who produces evidence to show that it has sold goods covered by notification issued under section 6 and the conditions and exceptions are complied with, is entitled to a deductions while its taxable turnover is computed. The selling dealer in order to be entitled to the deduction has to produce at the time of assessment the declaration Form 1-A which it has obtained from the purchasing dealer. In the instant case, there is no dispute that the purchasing dealer had issued Form 1-A to the petitioner. It is 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. According to the department, if the goods have not been utilized for the purpose indicated in the declar....
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.... it does not seem to us to extend to "collection". Article 265 of the Constitution makes a distinction between "levy" and "collection". 22. The Supreme Court in Peekay Rerolling Mills (supra), also referred to the observations in M/s. Somaiya Organics (India) Ltd. v. State of Uttar Pradesh AIR 2001 SC 1723; National Tobacco Company of India Ltd. (supra) and Collector, Central Excise, Hyderabad v. M/s. Vazir Sultan Tobacco Company Ltd. AIR 1996 SC 3025, it was observed as under: "45. In the light of the above two cases, it is evident that collection and levy are distinct and that collection is not an essential facet of levy. It is true that collection of a tax may sometimes be indicative of a lawful levy of tax, but in our opinion it does not logically follow that absence of collection means an absence of liability. We are also of the opinion that the reliance on the Town Municipal Committee (supra) by the Division Bench which involved an interpretation of "continued to be levied" and "to be applied to the same purposes" in Article 277 of the Constitution was misplaced. While that case did hold that in the circumstances before them 'levy' was in....
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....d in entirety thus indicates the exemption given to the eligible unit under the Act is only qua the payability. The said exemption to the eligible unit is not in the matter of assessment. The reason is obvious. The exemption is granted to the unit for 10 years or till the exemption entitlement gets exhausted, whichever is earlier. Therefore, under the notification, exemption is only qua payability and not in respect of assessment. That is the reason for incorporating Rule 9 into Notification dated 25.7.1990 which requires the eligible unit to file its returns in the manner specified under the Act, to attach requisite documents and for assessment in accordance with the provisions of the Act. Even with regard to payability, It may be noted that, under the scheme of the 1948 Act, the calculated tax gets appropriated towards the scheme entitlement. Taking this linkage into account, we are of the view that the words "subjected to tax" cannot be equated to the words "having suffered tax." 26. In Lloyd Electric and Engineering Ltd.(supra), the question was whether the Appellant Assessee is liable to pay central sales tax @ 2% on the inter-State sales for the period 1st April, 2009 to 1....