GANAPATRAI BALABUX Vs. THE ASSESSING AUTHORITY AND ORS.

JUDGEMENT

(1.) This writ application challenges the orders of the learned Assessing Authority and Appellate Authority of Sales Tax by raising extra demand of Rs. 1,13,178/- on the ground that reasonable opportunity was not afforded to the petitioner to adduce his evidence in support of deduction of tax while computing the same by the Assessing Authority and, similarly, the Appellate Authority, confirmed the orders of the Assessing Authority, ignoring the norms and authority of the Hon'ble Apex Court. The factual matrix leading to the case of the petitioner is that he was a registered dealer under the Orissa Sales Tax Act, 1947 (hereinafter called the "O.S.T. Act") as well as Orissa Entry Tax Act, 1999 (hereinafter called the "O.E.T. Act") and deals in mills-made and handloom clothes. During 2001-2002, he paid Rs. 1,17,008/- through the transporter to the border check gate officer, who issued the common receipt in the name of the transporter as entry tax of the check gate while the goods entered into the State of Orissa. According to the petitioner, on 18.12.1999, a circular bearing No. 25118/CT was issued by opposite party No. 3 to all concerned officers directing to issue consolidated receipt in respect of one truck of goods to the transporter, who will issue a copy of the receipt to the party while the party will take delivery of goods from the transporter. This circular also depicts that where large number of dealers bring goods in one truck, one receipt with authenticated list of dealers with value of goods, tax component and money receipt number would be handed over to the transporter and one copy of the list would be retained, while another copy would be sent to the concerned Commercial Tax Officer for necessary action at his end. In the instant case, while the petitioner's goods were being transported, the transporter at the check gates paid tax on behalf of owners of goods, including the petitioner, and they were issued with copy of money receipt for calculation of tax as well as list of dealers with value of goods and amounts of tax paid. So, the petitioner had reason to believe that whatever payment has been made by him to the transporter, who paid the same at the check gate, would be adjusted against the tax payable under the O.E.T. Act by the learned Assessing Authority. It is further alleged, inter alia, that surprisingly on 30.03.2005, the learned Assessing Authority has raised extra demand of Rs. 1,76,552/- without making adjustment of payment of the entry tax at the check gate to the tune of Rs. 1,13,178/- and without following the provisions of law and circular issued by the Department. Against the order of the learned Assessing Authority, the petitioner preferred appeal before opposite party No. 2, who also did not afford proper opportunity to the petitioner in terms of proviso to Sub-section (4) of section 7 of the O.E.T. Act and, in the absence of notice under Form No. E-4 and without following the judgment of this Court dated 23.06.2004 passed in W.P.(C) No. 2769 of 2004 in the case of M/s. Ram Krishna Raj Kumar v. Assessing Authority Zone-1, West Circle, Cuttack. About illegality of the order, it is pointed out that no notice was issued for production of Books of Accounts regarding its correctness and completeness for the purpose of assessment. It is the case of the petitioner that the learned Appellate Authority has equally committed mistake by not following the circular of the Department and the provisions of law under the O.E.T. Act. So, the petitioner challenges both the orders passed by opposite party Nos. 1 & 2 in this writ petition to quash the same.

(2.) Learned counsel appearing for the petitioner challenging the orders of opposite party Nos. 1 & 2 submitted that the order passed by the learned Assessing Authority without issuance of any statutory notice to the petitioner for production of Books of Accounts for examining the correctness and completeness is illegal, as section 7(4) of the O.E.T. Act requires the petitioner to be given an opportunity to produce evidence and, in the absence of the same, the order of the learned Assessing Authority is vulnerable, void and illegal. According to him, no reasonable opportunity was afforded to the petitioner to produce evidence for which the order of the learned Assessing Authority is perverse. He further submitted that the order of opposite party No. 2 is equally bad in law because the decision in the case of M/s. Ram Krishna Raj Kumar has not been followed, which clearly states that in the absence of statutory notice being served to produce the Books of Accounts, the order of the learned Assessing Authority is wrong and illegal. It was his further submission that the order passed by opposite party No. 2 is illegal by not following the circular issued by the Department in 1999, which speaks that the check gate officer issues money receipt to the transporter, who carries goods of a large number of dealers in one truck, and copy of list of dealers is retained while another copy is sent to the concerned C.T.O. to facilitate the adjustment of payment of tax at the entry of goods into the State of Orissa at the time of filing of returns by dealers in the concerned financial year. Submission was also advanced by him that the arbitrary order of the learned Appellate Authority in confirming the order of the Assessing Authority without following the provisions of law and circulars issued by the Department is equally vulnerable, perverse, and without any basis for which the same should be quashed.

(3.) On the contrary, learned counsel appearing for the opposite parties submitted that the writ petition is not maintainable when there is provision under section 17 of the O.E.T. Act read with section 23 of the O.S.T. Act to prefer appeal against the order of the First Appellate Authority. He submitted that opportunity was given by the learned Assessing Authority to the petitioner, as evident from the order of opposite party No. 1; but the petitioner has failed to produce the evidence and, as such, opposite party No. 1 has rightly passed the order. It was his further submission that the principles in the case of M/s. Ram Krishna Raj Kumar have been duly followed while disposing of the appeal. So, he supported the orders passed by the learned Assessing Authority and Appellate Authority and submitted to dismiss the writ petition.