TaxTMI 
TaxTMI 
2023 (9) TMI 1772
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....f law in the revision petition under Section 19: "I. Whether, on the facts and circumstances the Hon'ble Full Bench, Odisha sales Tax Tribunal, Cuttack is right in law to hold that the Assistant Commissioner of the Range has jurisdiction to pass the Order of Assessment under the Odisha Entry Tax Act of the petitioner, who is LTU dealer? II. Whether, on the facts and circumstances the Hon'ble Full Bench, Odisha sales Tax Tribunal, Cuttack is right in law to hold the Order of Assessment for the period 01.04.2005 to 18.10.2005 passed under Section 9C of the OET Act read with Rule 15B of OET Rules shall survive, when section 9C and Rule 15 was inserted in the statue on 19.05.2005 and 19.10.2005, respectively? III. Whether, the Hon'ble Full Bench, Odisha sales Tax Tribunal, Cuttack is right in law to hold the Sales Value of the goods to be termed as 'Purchase Value' under Section 2J of the OET Act in case of stock transfer of goods for the purpose of levy of Entry Tax under Section 3 of the OET Act? IV. Whether, in the facts and circumstances of the case stated above the Hon'ble Full Bench, Odisha sales Tax Tribunal, Cuttack is right in law to....
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....lubricant. 3.1. The branch of the company-BEML at Sambalpur, situated at BEML Complex, Panchgachhia, Bareipali, Sambalpur, a registered dealer under the Sales Tax Officer, Sambalpur-I Circle, Sambalpur, has been assigned with Registration Certificate bearing TIN: 21121703495 as Large Tax Payers' Unit (LTU). 3.2. The dealer-company being selected under Section 9B of the Odisha Entry Tax Act, 1999 (for brevity hereinafter referred to as "OET Act") read with Section 41 of the Odisha Value Added Tax Act, 2004 ("OVAT Act", for short), tax audit was accordingly conducted by a team headed by a Sales Tax Officer and an Inspector/Assistant Sales Tax Officer. Audit Visit Report was submitted to the Assistant Commissioner of Sales Tax, Sambalpur Range, Sambalpur-Assessing Authority. 3.3. In obedience to the notice in Form E-30 issued by the Assessing Authority initiating audit assessment proceeding under Section 9C of the OVAT Act as a result of tax audit, the petitioner appeared before him and explained the allegations/objections as raised in said Audit Visit Report. 3.4. The petitioner effected entry of goods brought otherwise than by way of purchase into the local area to the t....
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....dvocate for the petitioner having taken this Court to the provisions contained in Section 9B of the OET Act which in unequivocally speaks of that the provisions of Section 41 of the OVAT Act "shall mutatis mutandis" apply. Referring to Rule 11 of the Odisha Entry Tax Rules, 1999 ("OET Rules" for brevity) read with Rule 43 of the Odisha Value Added Tax Rules, 2005 (referred to as "OVAT Rules"), as it existed prior to substitution by virtue of the Odisha Value Added Tax (Amendment) Rules, 2009, with effect from 25.02.2009, he argued that the Appellate Authority even as misconceived the fact of application of amended provision in OET Act and rules framed thereunder to the tax periods prior to 19.10.2005 on which date the Odisha Entry Tax (Amendment) Rules, 2005 came into force, failed to appreciate the ground, though stands recorded in his order, to the effect that the Audit Visit Report submitted by the Audit Officer is not maintainable for initiating assessment proceeding. 5.1. Sri Chittaranjan Das, learned counsel for the petitioner-company emphatically contended that the Audit Team being not duly constituted in conformity with provisions contained in Section 9B of the OET Act r....
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.... of the OET Act, 1999: "9B. Identification of taxpayer.- (1) The Commissioner may select such individual dealers or class of dealers for tax audit on random basis or on the basis of risk analysis or on the basis of any other objective criteria, at such intervals or in such audit cycle, as may be prescribed. (2) After identification of individual dealers or class of dealers for tax audit under sub-section (1), the Commissioner shall direct that tax audit in respect of such individual dealers or class of dealers be conducted and for the purpose of conduct of such tax audit under this section, the provisions contained in Section 41 of VAT Act shall mutatis mutandis apply: Provided that the Commissioner may direct tax audit in respect of any individual dealer or class of dealers on out of turn basis or for more than once in an audit cycle to prevent evasion of tax and ensure proper tax compliance. (3) Tax audit shall ordinarily be conducted in the prescribed manner in the business premises or office or godown or warehouse or any other place, where the business is normally carried on by the dealer or stock in trade or books of account of the ....
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.... is proposed to be conducted, and the dealer shall be required to produce all accounts and records, as may be required, and extend all co-operation to the audit team for smooth conduct of audit. (c) Where audit of a dealer is proposed to be taken up under clause (c) of sub-rule (1), prior approval of the next higher authority shall be taken: Provided that when the audit visit is required to be made in course of an investigation or where there is reasonable apprehension that delay may lead to the disposal of the stock-in-trade or removal or destruction of books of account, records and documents, the approval of next higher authority shall be taken post facto, within twenty-four hours of the completion of such visit or return to headquarters, after completion of the audit, whichever is later. (5) (a) Tax audit shall comprise of verification of all records, documents, books of account including electronic record, relating or incidental to the business of the dealer, physical verification of stock-in-trade, collection of sample of goods and examination of such other records and documents, as may be required to determine the actual tax liability of the dealer.....
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....id not form part of the Audit Team which is contrary to mandate of Rule 43 of the OVAT Rules. 9.2. This Court finds that provisions of Section 9C is pari materia with Section 42 of the OVAT Act and Section 9B of the OET Act specifically speaks of application of provisions of the OVAT Act mutatis mutandis to the context of the OET Act. 9.3. In Rajasthan State Industrial Development and Investment Corporation Vrs. Diamond & Gem Development Corporation Limited, (2013) 5 SCC 470 the meaning of mutatis mutandis has been given as under: "17. In Ashok Service Centre Vrs. State of Odisha, AIR 1983 SC 394 = (1983) 2 SCC 82, this court held as under (SCC p.93, paragraph 17): '17. *** Earl Jowitt's The Dictionary of English Law 1959) defines 'mutatis mutandis' as 'with the necessary changes in points of detail'. Black's Law Dictionary (Revised 4th Edn. 1968) defines 'mutatis mutandis' as 'with the necessary changes in points of detail, meaning that matters or things are generally the same, but to be altered when necessary, as to names, offices, and the like' *** Extension of an earlier Act mutatis mutandis to a later Act, brings in the idea of adaptation, but so fa....
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..... So also, where a word has been constructed judicially in a certain legal area, it is we think, right to give it the same meaning if it occurs in a statute, dealing with the same general subject matter unless that the word must have a different construction." 9.6. The expression mutatis mutandis is an adverbial phrase qualifying the verb "shall ... apply" and meaning "those changes being made which must be made". This can mean only that the changes to be made must have reference to the proceedings to which the provision has to be applied and not to the particular clause under which the particular proceeding may be instituted. Given the understanding of the term mutatis mutandis, it is quite clear that whatever is true about the OVAT Act, the same is also applicable to the context of the OET Act. In other words, the audit team constituted for the purpose of tax audit under Rule 43 of the OVAT Rules can also be construed to be constituted for the purpose of tax audit conducted under Section 9B of the OET Act. 10. Under Section 9C of the OET Act read with Section 42 of the OVAT Act, audit assessment has to be completed on the basis of the materials available in the Audit Visit ....