MADRAS CEMENT LTD Vs. STATE OF ORISSA

JUDGEMENT

(1.) HEARD Mr. J. Sahoo, learned Counsel for the petitioner and Mr. R.P. Kar, learned Additional Standing Counsel for the Revenue.

(2.) THE petitioner, who is a registered dealer under the Orissa Value Added Tax Act, 2004 and has been granted a TIN number, challenges the order of assessment dated January 31, 2007 passed by the Sales Tax Officer, Bhubaneswar -II Circle, Ward -E -Opposite Party No. 2 under the Orissa Value Added Tax Act, 2004 vide annexure 2 on the following grounds: (1) That in the present case there being no self -assessment being validly made by the 'assessing authority' under Section 39 of the OVAT Act read with Rule 48 of the Orissa Value Added Tax Rules including scrutiny of return which is mandatory to be done by the assessing authority under Section 38, there is no self -assessment under Section 39 in the eye of law. Thus, in absence of valid self -assessment in accordance with the provisions of the OVAT Act, invocation of power of reassessment under Section 43 is ex facie illegal, arbitrary and without jurisdiction and is accordingly unsustainable in law. (2) That the petitioner most humbly submits that the opposite party No. 2 being the assessing authority of the circle, he has no power and jurisdiction to assess or reassess the present petitioner who is a dealer assigned with TIN as per the provisions of Rule 34(12)(b) of the OVAT Rules. Therefore, the order dated January 31, 2007 passed by the opposite party No. 1 is without jurisdiction and is further contrary to the express provisions of the OVAT Act and OVAT Rules and the same is accordingly liable to be quashed.

(3.) IN view of Rule 34(12)(b) of the OVAT Rules as noted hereinabove it is clear that dealers who have been granted registration under OVAT Act/Rules and have been assigned with TIN numbers, in terms of the aforesaid rule, such dealers can only be assessed by the 'assessing authority of the range'. Annexure 2 is the impugned order of assessment, which has been admittedly passed by the Sales Tax Officer, Bhubaneswar -II Circle, Ward -E. It has been admitted by the learned Counsel for the Revenue that the Sales Tax Officer is not 'the assessing authority of the range' as required under Rule 34(12)(b). We are satisfied on a scrutiny of the impugned order of assessment under annexure 2, that since it has been passed by the Sales Tax Officer and not by the assessing authority of the range, the order of assessment cannot withstand judicial scrutiny and is held to be without jurisdiction not being in conformity with Rule 34(12)(b). Accordingly, the order impugned, i.e., assessment order vide annexure 2 is set aside.