JANKIRAM JAIN Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner is a dealer in wholesale seasonal goods like pulses, oil-seeds, etc. , which are declared commodities within the meaning of section 14 of the Central Sales Tax Act, 1956 (for short "the Act" ). He purchases these goods from the local market and effects sale of the goods in the course of inter-State trade. The goods purchased by the petitioner are taxed under the Orissa Sales Tax Act, 1947, at the purchase point and the petitioner has paid taxes on the same. He has also to be taxed under the Act. Once the tax under the Act is paid, he gets refund of the taxes paid in Orissa under the Orissa Sales Tax Act. For the assessment years starting from 1974-75, the petitioner has bean assessed to Central sales tax. In those years, he has entitled to refund, but despite approaches being made the refunds have not been made. For the assessment years 1978-79, 1979-80 and 1981-82, the petitioner has been assessed to tax under the Act. Once the tax demanded is paid, he will be entitled to refund of the tax paid under the Orissa Sales Tax Act, but the petitioner apprehends that his refund applications would not be attended to, and he has, therefore, approached this Court to get the demand notices under the Act set aside. It may be stated here that during the relevant periods of assessment, the goods in question were taxable at the rate of 4 per cent under both the taxing statutes.

(2.) TO take care of the double taxation involved and to avoid approaches for refunds following double payment of tax, a notification was issued by the State Government in the Finance Department on 8th December, 1966, bearing No. 43637-CTA-200/66-F, in exercise of power conferred by sub-section (5) of section 8 of the Act being satisfied that it was necessary to do so in the public interest directing that on fulfilment of the conditions mentioned in the notification in respect of declared goods sold in the course of inter-State trade or commerce, no tax under the Act should be payable any dealer in respect of the sale by him of such goods where tax has been levied or collected on the sale or purchase of such declared goods under the Orissa Sales Tax Act, 1947. If this notification would have continued in force, the petitioner would not have been required to pay tax under the Act. It, however, so happened that this notification was declared as invalid by a Bench decision of this Court in Orissa Hides Trading Co. v. Sales Tax Officer [1975] 35 STC 232. The same view was reiterated in K. Narayana Kumandan Sons and Co. v. Sales Tax Officer [1975] 36 STC 374 (Orissa), and Subudhi Krishna Murty and Sons v. Sales Tax Officer [1975] 36 STC 419 (Orissa ).

(3.) SUBSEQUENTLY , however, a Full Bench of this Court held in Kamal Kumar Agarwal v. Sales Tax Officer [1980] 46 STC 384, that the Notification dated 8th December, 1966, was intra vires and enforceable. The Full Bench further held that the judgments rendered in the aforesaid three cases were not correct in so far as they held notification to be bad. They were, therefore, overruled.