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2008 (4) TMI 686 - HC - VAT and Sales TaxOVAT tax demanded - Penalty imposed - Held that - The goods in question having come from outside the State of Orissa and the documents establish the fact that the entire consignment also left Orissa the presumption of sale as contemplated under sub-section (10) of section 74 cannot and does not arise. Therefore looking at the issue of levy of tax under the OVAT Act there exists no statutory basis for justifying the same. Therefore in our considered opinion not only was the demand of penalty invalid for the reasons as noted hereinabove the demand for OVAT and entry tax is also without any statutory basis and therefore unlawful. Accordingly the writ application is allowed. The amount of OVAT deposited is directed to be refunded and the bank guarantee of Rs. 25, 00, 000 issued in favour of the Revenue may also be similarly released in favour of the petitioners within a period of 4 (four) weeks from the date of this judgment. Imposition of penalty has already been quashed.
Issues Involved:
1. Jurisdiction and applicability of the Orissa Value Added Tax (OVAT) Act, 2004. 2. Imposition of tax and penalty under the OVAT Act. 3. Interpretation of statutory provisions and principles of natural justice. 4. Validity of presumptive taxation under the OVAT Act. 5. Compliance with statutory requirements for transit of goods. Issue-wise Detailed Analysis: 1. Jurisdiction and Applicability of the OVAT Act: The petitioners argued that the sale of Purified Terephthalic Acid (PTA) occurred in West Bengal and was governed by the Central Sales Tax Act, 1956, thus excluding the applicability of the OVAT Act. The court examined the nature of the transaction, the location of the sale, and the provisions of the Central Sales Tax Act. It was concluded that the sale was inter-State and covered under the Central Sales Tax Act, negating the applicability of the OVAT Act for the transaction. 2. Imposition of Tax and Penalty under the OVAT Act: The Sales Tax Officer imposed tax and penalty on the basis that 84 bags of PTA were not covered by valid documents at the check-post. The court scrutinized the statutory provisions, particularly section 74 of the OVAT Act, which deals with the establishment of check-posts and inspection of goods. The court noted that the documents were produced later and were not found to be false or forged. It emphasized that the discretion provided under section 74(5) of the OVAT Act must be reasonably exercised and that penalty is not automatic. 3. Interpretation of Statutory Provisions and Principles of Natural Justice: The court referred to various judgments to underline the principles of statutory interpretation, emphasizing that penal provisions must be construed strictly. It held that if two reasonable constructions are possible, the one favoring the subject should be adopted. The court found that the authorities failed to exercise discretion reasonably and imposed penalties without proper justification, thus violating principles of natural justice. 4. Validity of Presumptive Taxation under the OVAT Act: The court examined the basis of the Revenue's presumption that the excess bags of PTA would have been sold inside Orissa to evade tax. It clarified that presumptive taxation must have a statutory basis, which was absent in this case. The court highlighted that section 74(10) of the OVAT Act provides for presumption of sale only when the transit pass is not delivered at the exit check-post, which was not applicable here as the goods were in transit through Orissa to Maharashtra. 5. Compliance with Statutory Requirements for Transit of Goods: The court analyzed the compliance with section 74 of the OVAT Act, which mandates carrying and producing documents during transit. It found that while there was a lapse in producing documents at the entry check-post, the documents were later produced and found genuine. The court held that the imposition of tax and penalty at the entry check-post was unauthorized, as the statutory conditions for presumptive sale and subsequent tax demand were not met. Conclusion: The court quashed the imposition of penalty and tax under the OVAT Act, directing the refund of the deposited amount and release of the bank guarantee. It emphasized the necessity of reasonable exercise of discretion by authorities and adherence to statutory provisions and principles of natural justice. The orders of the Sales Tax Officer and the revisional authority were set aside, and the writ petition was allowed.
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