BALAJI TOBACCO STORE Vs. THE SALES TAX OFFICER

JUDGEMENT

(1.) This Writ Petition has been filed with a prayer for quashing the order of assessment dated 27.05.2011 passed under Section 42 of the Orissa Value Added Tax Act, 2004 (for short, 'OVAT Act') by the opposite party-Sales Tax Officer, Cuttack-1 East Circle, Cuttack (hereinafter referred to as 'Assessing Authority') for the period 29.03.2006 to 30.11.2008 under Annexure-1 on the ground that the Assessing Authority has no authority/jurisdiction to pass the said order.

(2.) In the Writ Petition, though several grounds have been taken to challenge the order of assessment, Mr.B.P.Mohanty, learned counsel for the petitioner confines his argument to one ground, i.e., the impugned order of assessment dated 27.05.2011 passed under Section 42 of the OVAT Act for the period 29.03.2006 to 30.11.2008 is not sustainable in law since the opposite party-Assessing Authority by order of assessment dated 25.09.2006 has already assessed the petitioner under Section 43 of the OVAT Act and levied tax at the rate of 4% on un-manufactured tobacco for the period 24.01.2006 to 31.07.2006, which was included in the present tax period. According to Mr. Mohanty no assessment order under Section 42 of the OVAT Act can be passed after completion of the assessment under Section 43 of the OVAT Act for the self same period. It was further submitted that this action of the opposite party also amounts to taxing the same turnover twice for which assessment order is bad in law.

(3.) Mr.M.S.Raman, learned Additional Standing Counsel for the Revenue submitted that both the Sections, i.e., Section 42 and Section 43 operate in different fields for the purpose of assessment under the OVAT Act. The Assessing Authority is vested with the jurisdiction/power to make assessment either under Section 42 or Section 43 of the OVAT Act, as the case may be. There is no legal bar to make assessment under Section 42 of the OVAT Act after completion of assessment under Section 43 of the said Act for the self-same period(s).