TATIRUNI BAPUJI Vs. STATE OF ORISSA

JUDGEMENT

(1.) PETITIONERS 35 in number who are the truck owners have filed this writ petition being aggrieved by the action of the opposite party No. 2 -Sales Tax Officer, Unified Check Gate, Girisola, Ganjam (hereinafter called 'the S.T.O.') for collecting sales tax from them on the fish transported by their trucks from the State of Andhra Pradesh to the States of West Bengal or Bihar. The reliefs sought in this writ petition are as follows:

(2.) BRIEFLY stated, the case of the petitioners is that they are transporters and are engaged in transporting fish from the consignors in the State of Andhra Pradesh to the consignees in the States of West Bengal or Bihar. While proceeding from Andhra Pradesh to West Bengal or Bihar they have to move through the State of Orissa. The S.T.O. in excess exercise of his power under the Orissa Sales Tax Act, 1947 (hereinafter referred to as the 'Act') has resorted to forcible realization of tax on fish with penalty carried by the petitioners from Andhra Pradesh to West Bengal or Bihar at the Unified Check Gate, Girisola (hereinafter called as the 'check -gate'). The consignors fill up the way bills in Form -X under the Andhra Pradesh Sales Tax Rules indicating the address of the consignees of West Bengal and Bihar. It is the sole responsibility of the petitioners to carry the fish to the destination of the consignments within the stipulated period of time in good condition which is virtually a race against time as fish is a highly perishable commodity. Taking advantage of this, the S.T.O. forcibly stops the vehicles at the aforesaid check gates and issues notice Under Section VI(A) in the name of the consignor and serves the same on the driver of the vehicle. Along with the Form -VI(A) another notice in Form No. X (A) is given to the driver concerned indicating therein that the consignor has to pay Rs. 4,500/ - under the Act and thereafter the S.T.O. informs the driver that unless and until the driver pays an amount of Rs. 4,500/ - i.e., of Rs. 4,000/ - towards sales tax and Rs. 500/ - as penalty, the said vehicle would not be allowed to pass. A way bill in Form -XXXII is also filled up by the S.T.O. and in accordance with the declaration given in the way bill under Form -X of the Andhra Pradesh Sales Tax Rules, the driver is forced to sign on the same. According to the petitioners, to legalize his action, in the way bill, usually the S.T.O. points out the defects in the following manner:

(3.) COUNTER affidavit has been filed by the Opposite party No. 2 refuting the claim and controverting the averments made in the writ petition. It is stated in paragraph -8 of the counter affidavit that most of the petitioners have resorted to a clever ploy of evading legitimate tax due to the department by preparing false way bills to show that the goods are intended to pass through the territory of the State of Orissa the destination being outside the State whereas in fact they are unloading the goods inside the State of Orissa resulting in sale of the goods without payment of tax that is legitimately due to the department. It is stated further that basing on the earlier reports of such detection of evasion of tax by the Mobile and Intelligence Wings of the department, no alternative is left out on the part of the department except to realize the tax in respect of vehicles which have in the past indulged in evasion of tax. In paragraph -15 of the said counter, it is stated that the departmental officer has also recorded the statement of some persons in charge of the vehicle admitting delivery of goods inside the State of Orissa as stated above. The opposite parties in support of their stand have enclosed copies of some of the reports of the Commercial Tax Officers with the counter affidavit. It is further stated that the consignors of fish are not registered under the Act having their fixed place of business inside the State and are not permanent residents of the State of Orissa for which tax is realized from them at the entry point at the border check gate. Besides, since the identity of the consignors and their whereabouts are not known to the department, it would not be feasible to collect tax from them by resorting to regular method of assessment. Therefore, the Revenue authorities have exercised the power vested in them under Rule 94 of the Rules read with Section 16 -A of the Act and collect tax from the petitioners at the check gate.