SRI VINAYAK STORE Vs. SALES TAX OFFICER

JUDGEMENT

(1.) THE petitioner's grievance is that unauthorised collections have been made at the cheek-post established under the Orissa Sales Tax Act, 1947 (in short "the Act'), and the Orissa Sales Tax Rules, 1947 (in short "the Rules") by the officer-in-charge, Jamsolaghat unified cheek gate. Without complying with the requirements of rule 94 (4) (a) of the Rules which mandate issuance of a notice in form VI-B in case of defect and/or omissions in the way-bill in form XXXII, various amounts as indicated in annexure 3 series have been collected from petitioner. No order has been passed in regard to the collections made. Arbitrarily value of the goods carried have been fixed and tax thereon has been collected. Learned counsel for the department, however, submits that payments were voluntary, and in order to avoid waiting at the cheek gate for the purpose of inspection, persons-in-charge of the vehicles, opted to make voluntary payment and therefore, question of issuance of any notice or passing any order did not arise.

(2.) WE find that the petitioner is a dealer registered under the provisions of the Act bearing registration No. OST. No. CUIE 3462. It is also a registered dealer under the Central Sales Tax Act, 1956 (in short "the Central Act") and has been issued with certificate of registration No. CUCIE 2189.

(3.) ON the facts of the case, we find that there is dispute on the question whether there was voluntary payment of the tax by the drivers of the vehicles, or there was collection of tax, without following procedures prescribed by law. Be that as it may, in respect of the amount already collected, we direct that the same shall be taken into account while making assessment. The petitioner is entitled to adjust the amounts paid against admitted taxes payable, in terms of the third proviso to rule 36 of the Rules. So far as future transactions are concerned, there is no need to emphasise that without issuance of notice in form VI-B in a case where there is defect or omission in the way-bill or evasion of tax, as stipulated in rule 94 (4) (a) collections of tax should not be made by the cheek-post officer. If there is no defect or omission, in the way-bill or evasion of tax in respect of goods, carried in the vehicle, question of collection of tax at the cheek-post does not arise. The petitioner shall incorporate transactions in its books of account required to be maintained under the Act and the Central Act and those shall be subjected to verification by the concerned authorities as provided in law. The officer-in-charge of the check-post is authorised to indicate the amount of tax in respect of goods carried, for which option is to be exercised. It cannot be any fanciful figure. There must be some basis for requiring payment of tax on a figure higher than disclosed in the way-bill. That involves a process of adjudication. No adjudication can he made unilaterally. Since the inconvenience of the person carrying the goods cannot he lost sight of, and by their very nature, provisions of rule 94 are of emergency nature, detailed adjudication is ruled out. No specific procedure or manner of adjudication is prescribed. Compelling reasons therefore, must exist for making a departure from collecting tax on the disclosed figure. It has to be indicated here that neither in rule 94 nor form VI-B, there is any prescription for putting a valuation higher than one disclosed in the way-bill. Where the purchaser/consignee is a registered dealer, ordinarily the value indicated in the way-bill has to be accepted, unless compelling reasons exist. That is because, at the time of assessment the question of under-valuation, if any, can be adjudicated. If, however, the officer-in-charge of the check-post is of the considered view that a departure is warranted, he must record reasons therefor and indicate those to the prescribed person. Adoption of such procedure will be in tune with principles of natural justice. The writ application is disposed of accordingly. No costs.