EDEL CAST INDIA Vs. SALES TAX OFFICER

JUDGEMENT

(1.) THE petitioner having been assessed both under the Central Sales Tax Act and the Orissa Sales Tax Act for the assessment year 1978-79, in respect of the same transaction of sale, has approached this Court in these two writ petitions for quashing of the same. O. J. C. No. 12 of 1980 relates to the assessment under the Central Sales Tax Act and O. J. C. No. 13 of 1980 relates to the assessment under the Orissa Sales Tax Act. The facts, which are not disputed, and appear from the assessment order under the Orissa Sales Tax Act, are that the petitioner is in the trade of securing orders from outside the State, mostly from cement factories, and only from two others, M/s. Hindusthan Zinc Ltd. and M/s. Hindusthan Copper Ltd. , for sale of a very hard metal commercially known as cylpebs. The petitioner purchases the articles from M/s. Siva Metal Industries by furnishing declarations in form XXXIV. Thereafter, as appears from the order of assessment under the Central Sales Tax Act, the petitioner issued C form declarations to M/s. Siva Metal Industries and directed the latter to book the goods as consignor to a particular place and transfer the railway receipts or the lorry receipts as the case may be, in a challan to the petitioner. The purpose of such conduct was to show the sales as having been effected under section 3 (b) of the Central Sales Tax Act.

(2.) THE petitioner is a registered dealer under the Orissa Sales Tax Act. The assessing officer assessing the petitioner under the Orissa Sales Tax Act held that since the petitioner had purchased the cylpebs from M/s. Siva Metal Industries furnishing declarations in form XXXIV for resale of goods in Orissa but had admittedly sold the same outside the State, he had contravened the declaration and as such was covered under the second proviso to section 5 (2) (A) (a) (ii) of the Orissa Sales Tax Act and liable to have the sales included in his gross turnover and assessed under the Orissa Sales Tax Act.

(3.) SO far as assessment made under the Central Sales Tax Act is concerned, it is fairly conceded by Mr. R. K. Patra, the learned Additional Government Advocate appearing for the department, that it cannot be allowed to stand. There has been never two transactions of sales and it is foregone that a single transaction of sale can be assessed either for State sales tax or for Central sales tax as the case may be but never for both. Since it has been found that the sales are exigible under the State Act after 26th of April, 1978, obviously the assessment order under the Central Sales Tax Act, so far as the said period is concerned, must stand quashed. But however the petitioner would be liable to be assessed under the Central Sales Tax Act for its sales effected before 26th of April, 1978. The assessing officer proceeded on a wrong footing that the petitioner is liable to be taxed under the Central Sales Tax Act since according to him, it was not a registered dealer under the Central Sales Tax Act but somehow or other caught hold of C forms which declarations he gave to M/s. Siva Metal Industries. The stand is factually not correct. The petitioner has annexed to O. J. C. No. 12 of 1980 an attested copy of his certificate of registration under the Central Sales Tax (Registration and Turnover) Rules, 1957 as annexure-2 which shows Ramesh Chandra Dave, the proprietor of the petitioner-firm, to be a registered dealer for the sale of cylpebs amongst other articles. This position has not been disputed by the department. In that view of the matter, the order of assessment under the Central Act cannot be allowed to stand.