Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK STREV NO. 63 OF 2014 In the matter of revision under Section 19 of the Orissa Entry Tax Act, 1999 arising out of order dated 31.12.2013 passed by the Odisha Sales Tax Tribunal, Cuttack (Camp- Berhampur) in S.A. No.31(ET)/2012-13 confirming the order dated 09.04.2012 passed by the Joint Commissioner of Sales Tax, Ganjam Range, Berhampur in Appeal Case No. AAE.04/2010-2011. --------------- AFR M/s. RASHMI AQUA TECH, Berhampur, Ganjam ..… Petitioner -Versus- State of Odisha ….. Opp. Parties For petitioner : M/s. U.C. Behura, P. Dutta, S.K. Ray and B.B. Panda, Advocates For opp. party : Mr. Sunil Mishra, Standing Counsel for Revenue (O.P.1) P R E S E N T: THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR JUSTICE G. SATAPATHY DECIDED ON : 22.04.2024 DR. B.R. SARANGI, J. The petitioner, by means of this Sales Tax Revision, seeks to set aside the order dated 31.12.2013 passed in Second Appeal No.31(ET)/2012-13, by which Page 1 of 12 // 2 the Odisha Sales Tax Tribunal, Cuttack (Camp at Berhampur), while dismissing the said appeal, observed that the levy of penalty under Section 9-C(5) of the Odisha Entry Tax Act read with Sub-sections (3) and (1) of the said section is justified. 2. The facts of the case, in brief, are that the petitioner used to carry on the business of manufacturing and selling of packaged drinking water and butter milk in wholesale and retail basis inside the local area on door delivery basis. The Assessing Officer, for the assessment period from 01.04.2005 to 31.12.2008, assessed the petitioner dealer, as a manufacturer, to pay Entry Tax on its sales value of goods prescribed under Section 26 of the Odisha Entry Tax Act. Accordingly, the Assessing Officer, vide order dated 10.11.2009, assessed the petitioner under Section 9 of the Odisha Entry Tax Act and directed to pay tax of Rs.2,03,251/- and penalty of Rs.4,06,502/- in total Rs.6,09,753/-. Page 2 of 12 // 3 2.1. Aggrieved by the said assessment order, the
Legal Reasoning
petitioner preferred First Appeal Case No.AA.E.04/2010- 2011 before the First Appellate Authority, who, vide order dated 09.04.2012, confirmed the assessment order dated 10.11.2009 passed by the Assessing Officer. Challenging the said order, the petitioner preferred S.A. No.31(ET)/2012-13 and the Odisha Sales Tax Tribunal, Cuttack (Camp-Berhampur), vide
Decision
order dated 31.12.2013, confirmed the orders passed by the Assessing Officer as well as the First Appellate Authority holding that the Assessing Officer has jurisdiction to pass assessment order under Section-9 of the Odisha Entry Tax Act, as the petitioner is undertaking production under Section 26 of the Odisha Entry Tax Act, all sales are taxable under Section 3 of the Odisha Entry Tax Act and the imposition of penalty is also justified. Hence, this Sales Tax Revision. 3. Mr. U.C. Behura, learned counsel appearing for the petitioner contended that the point raised with regard to jurisdiction for initiation of proceeding under Section 9 of the Odisha Entry Tax Act, without Page 3 of 12 // 4 retrospective effect of amendment conferring the jurisdiction and delegation of power under Section 9 of the Odisha Entry Tax Act, after the effective date of amendment, i.e., 25.02.2009, that the Sales Tax Officer of the circle has power to accept and proceed for the audit assessment of any TIN hold dealer under Sub-rule (12) of Rule 34 read with Section 34 of the Odisha Entry Tax Act. It is contended that in Jindal Stainless Ltd. v. State of Orissa, 2012 (Vol.54 VST) 1, this Court held that in the fiscal statute, the Maxim-‘Expression unius est Esclusion Alteris’ shall be applied. Therefore, without considering the same, the Tribunal has confirmed the order passed by the Assessing Officer as well as the First Appellate Authority. To substantiate his contentions, he has relied upon Jindal Stainless Ltd. (now JSL Ltd.), Jajpur v. State of Orissa, 2012 (Vol.54 VST) 1; M/s. Delhi Foot Wear, Shiv Bazar, Cuttack v. Sales Tax Officer, Vigilance, Cuttak (W.P.(C) No.2971 of 2009, disposed of on 25.09.2014) and M/s. Rashmi Cement Ltd., Cuttack v. The Sales Tax Officer, Cuttack II Page 4 of 12 // 5 Circle, Cuttack (W.P.(C) No.1006 of 2010, disposed of on 17.02.2010). 4. Mr. Sunil Mishra, learned Standing Counsel appearing for the Revenue, justifying the order passed by the Tribunal, contended that the issues framed by the petitioner in paragraph-10 of the STREV do not fall within the consideration of this Court. In support of his contention, he has relied upon the judgment of the apex Court in Commissioner of Sales Tax v. Subhash &