Orissa High Court
M/S. V.A. Narasimha Moorty & Sons vs State Of Odisha on 8 December, 2022
THE HIGH COURT OF ORISSA AT CUTTACK
STREV No.65 of 2017
M/s. V.A. Narasimha Moorty & Sons .... Petitioner
Mr. Jagabandhu Sahoo, Senior Advocate
with Ms.Kajal Sahoo, Advocate
-versus-
State of Odisha .... Opposite Party
Mr. Susanta Kumar Pradhan,
ASC for CT & GST Organization
CORAM:
THE CHIEF JUSTICE
JUSTICE M.S. RAMAN
ORDER
08.12.2022
Order No.
M. S. Raman, J.
06. 1. The petitioner, a partnership firm, assailed Order dated 18.05.2017
in Second Appeal No.57(C) of 2015-16 passed by the learned Odisha
Sales Tax Tribunal, Cuttack directed against Order dated 30.04.2015
of the Additional Commissioner of Sales Tax, (Appeal), South Zone,
Berhampur in connection with Audit Assessment framed under Rule
12(3) of the Central Sales Tax (Odisha) Rules, 1957 (in short referred
to as, "CST(O) Rules") by the Joint Commissioner of Sales Tax,
Ganjam Range, Berhampur pertaining to tax periods from
01.07.2007 to 31.03.2011.
2. While entertaining the revision petition, this Court vide Order
dated 28th November, 2017 framed the following questions of law:
"A) Whether in view of production of 'H' Forms and
export documents including Bill of Lading in respect of
claim under Section 5(3) and 5(4) of the CST Act, it is
lawful and proper for the First Appellate Authority to
remand the matter to the Assessing Authority for fresh
assessment?
B) Whether in absence of appeal or cross objection by
the State and in view of Circular dated 20.04.2015 of
the Commissioner of Commercial Taxes, Odisha the
learned Tribunal is justified to render findings for
reconsideration on the issue of imposition of penalty
under Section 12(3)(g) of the CST(O) Rules, 1957?"
3. The First Appellate Authority has assigned the following
reason for disallowing the claim of the petitioner-dealer, as
penultimate seller, for exemption from payment of Central sales tax
on the transactions of sale in course of export to Indian Exporters
under Section 5(3) of the Central Sales Tax Act, 1956 (for short
referred to as "CST Act"):
"*** At the appeal hearing stage the dealer
appellant appeared and furnished supporting
documents like bill of lading, purchase orders towards
claims of exemption of export sales amounting to
Rs.3,32,99,562/- but failed to comply the objections
raised by the learned Assessing Officer in the orders of
assessment by not furnishing the agreement copies or
sale contract or purchase order of the foreign buyer
with the Indian Exporter for want of which the learned
Assessing Officer disallowed the claims of exemption
of sale invoking provision of Section 5(3) of the CST
Act. Further, the dealer-appellant has been allowed
sufficient opportunity for production of copies of
agreement between Indian Exporter and Foreign
Buyer but the dealer appellant failed to furnish such
copies of agreement. Hence, in the absence of
supporting documentary evidences the transaction of
export sale claiming exemption of tax as per provisions
of Section 5(3) of the CST Act could not be considered
as true and correct and the transaction is treated as
deemed sale under the CST Act and is taxed at the
appropriate rate."
However, after recording that there was no intention to
evade the tax on the part of the petitioner, the First Appellate
Authority has deleted the imposition of penalty under Rule 12(3)(g)
of the CST (O) Rules.
4. The learned Odisha Sales Tax Tribunal in second appeal being
preferred by the petitioner-assessee while declining to interfere with
the order of disallowance of exemption under Section 5(3) of the
CST Act, shown indulgence in the order of deletion of penalty
imposed under Rule 12(3)(g) of the CST (O) Rules. The learned
Tribunal having set aside the orders of the First Appellate Authority
remitted the matter to the Assessing Authority for fresh assessment.
5. The facts, the contentions and the questions of law raised in the
present matter are identical with the case of General Traders Vrs.
State of Odisha, STREV No.64 of 2017.
6. Both the items are taken up together for hearing today being
conceded by counsel for both the sides.
7. Judgment has been delivered in the case of General Traders v.
State of Odisha (supra) today.
8. The instant matter is, therefore, disposed of in the same terms as in
the Judgment rendered by this Court in the case of General Traders
v. State of Odisha, (supra). In other words, the questions framed are
answered in favour of the Assessee and against the Department and
the Order dated 18.05.2017 of the Tribunal and the corresponding
orders of the First Appellate Authority and Assessing Authority to
the above extent are hereby set aside. The sales tax revision petition
is allowed, but, in the circumstances, with no order as to costs.
(Dr. S. Muralidhar)
Chief Justice
(M. S. Raman)
Judge
Laxmikant
