B D PATNAIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner calls in question the legality of the order passed by the Orissa Sales Tax Tribunal (in short "the Tribunal") in Second Appeal No. 1395 of 1982-83.

(2.) BACKGROUND facts are that the petitioner is a dealer registered under the provisions of the Orissa Sales Tax Act, 1947 (in short "the Act"), and for the assessment year 1979-80 was assessed by the Sales Tax Officer, Rourkela I Circle, Uditnagar (in short "the assessing officer" ). For the said year, the petitioner filed its return as required under the Act, and the Orissa Additional Sales Tax Act, 1975 (in short "the Additional Act") and the Orissa Additional Sales Tax Rules, 1975 (in short "the Additional Rules" ). The petitioner undisputedly received Rs. 21,06,412. 08 including sales tax for supply of materials and a further sum of Rs. 11,11,361. 38 towards transportation and handling charges. In the return filed under the Act, the Additional Act and the Additional Rules, the gross turnover was disclosed at Rs. 21,06,412. 08 covering the consideration received for sale of goods including sales tax collected. The assessing officer held that the amount received for transportation charges was also liable to be included in the gross turnover since, according to him, it formed part of the sale price and he determined the gross turnover at Rs. 32,17,781. 08 under the Act, and demanded extra tax on the enhanced turnover. Additional sales tax was also demanded under rule 5 of the Additional Rules by treating the turnover as determined by him to be taxable turnover under the Additional Rules. The petitioner assailed the assessment before the Assistant Commissioner of Sales Tax, Appellate Unit, Rourkela, who by a combined order dated May 18, 1982, reduced the gross turnover by excluding the transport charges. He had that the transport charges being not part of the gross turnover was not taxable under the Act and the same could not be included in the taxable turnover under the Additional Rules. The State of Orissa represented by the Commissioner of Sales Tax, Orissa, opposite party No. 1, filed appeal before the Tribunal challenging exclusion of transport charges from the taxable turnover for the purpose of Additional Rules. A Division Bench of the Tribunal held that the Assistant Commissioner was wrong in excluding the transport charges from gross turnover of the petitioner and held that it was liable to pay additional sales tax on the turnover relating to transport charges. An application under section 24 (1) of the Act was filed by the petitioner praying for a reference to this Court on four questions along with the statement of facts for determination. By order dated February 22, 1985, the reference application was rejected primarily on the ground that the questions raised did not relate to any finding recorded by the Tribunal and the points at issue having neither been pleaded nor raised at the time of hearing of the appeal, there was no scope for reference of the questions. The petitioner filed an application under section 24 (2) of the Act in this Court, which was numbered as S. J. C. No. 51 of 1985. The same was disposed of with the observation that the points raised were not canvassed before the Tribunal, and therefore, they did not form part of order of the Tribunal, and the rejection of the application was in order. It was, however, observed that this writ application shall be disposed of on merits. We are deciding the points raised here because the Tribunal appears to have proceeded on erroneous premises without keeping in view the correct position in law. It is relevant to refer to some provisions of the Additional Act and the Additional Rules.