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2009 (1) TMI 792 - HC - VAT and Sales TaxValidity of assessment order under section 43 of the Orissa Value Added Tax Act 2004 challenged on various grounds including the jurisdiction of the assessing officer to levy tax under section 12 of the OVAT Act on the raw materials purchased from outside the State of Orissa Held that - The impugned order levying taxes on purchases admittedly made outside the State of Orissa and therefore the assessing officer has proceeded on a complete misconception of the OVAT Act as the sections thereof would only operate in case of transactions sale or purchase within the State of Orissa. It cannot have extra territorial operation and cannot bring within its ambit transaction of sale or purchase made outside the State of Orissa. Levy of tax on said transactions would be violative of provisions of article 286 of the Constitution of India and even the State Legislature does not have competence to enact the law having operation outside the State in view of the provisions of article 245 of the Constitution. Such an imposition of tax contravenes section 4 of the CST Act 1956 which expressly provides that a sale inside a particular State shall be deemed to have been made outside all other States. It also contravenes the provision of section 1 of the OVAT Act which expressly provides that the Act extends only to the State of Orissa and assessment order is in violation of the true spirit of the definition of sale and purchase contained in section 2 of the OVAT Act. Thus the levy of tax by the State of Orissa under section 12 of the OVAT Act on such purchases is not sustainable in the eye of law. W.P. allowed.
Issues Involved:
1. Jurisdiction of the assessing officer under Section 12 of the OVAT Act to levy tax on raw materials purchased from outside the State of Orissa. 2. Legislative competence of the State Legislature under Article 245 of the Constitution of India to impose tax on transactions outside the State. 3. Interpretation of Section 12 of the OVAT Act in conjunction with Section 4 of the CST Act, Entry 54 of List II of the Seventh Schedule, and Articles 245 and 286 of the Constitution of India. Issue-wise Detailed Analysis: 1. Jurisdiction of the Assessing Officer under Section 12 of the OVAT Act: The petitioner challenged the validity of the assessment order dated July 8, 2008, issued by the Assistant Commissioner of Sales Tax, Sambalpur Range, under Section 43 of the OVAT Act. The primary contention was that the assessing officer lacked jurisdiction to levy tax on raw materials purchased from outside Orissa. The petitioner argued that Section 12 of the OVAT Act applies only to purchases within Orissa. The court examined Section 12, which allows tax on purchases from registered dealers where no tax under Section 11 is payable or from any person other than a registered dealer, provided the goods are not sold within the State or in the course of inter-State trade or commerce or export out of India. The court concluded that "any person" in Section 12 does not extend to persons outside Orissa, as the OVAT Act applies only within the State's boundaries. 2. Legislative Competence under Article 245: The petitioner argued that the State Legislature's power is confined to making laws within its territory under Article 245 of the Constitution. The court agreed, stating that the OVAT Act extends only to Orissa, and any attempt to tax transactions outside the State would be invalid for extra-territorial operation. The court emphasized that the legislative power under Entry 54 of List II is subject to the limitations of Article 286, which restricts states from taxing sales or purchases outside their boundaries or in the course of import/export. 3. Interpretation of Relevant Provisions: The court analyzed Sections 1, 2, and 12 of the OVAT Act, Section 4 of the CST Act, Entry 54 of List II, and Articles 245 and 286 of the Constitution. Section 4 of the CST Act stipulates that a sale or purchase inside a State is deemed outside all other States. The court noted that the OVAT Act's provisions apply only to transactions within Orissa. The court referenced several Supreme Court judgments, including Hansraj Bagrecha v. State of Bihar, Hotel Balaji v. State of Andhra Pradesh, and Onkarlal Nandlal v. State of Rajasthan, which support the principle that states cannot tax transactions occurring outside their territory. The court rejected the Revenue's argument that "any person" in Section 12 includes persons outside Orissa, emphasizing that the OVAT Act's definitions of "registered dealer" and "person" refer to those within Orissa. The court also dismissed the Revenue's reliance on the theory of extra-territorial legislative competence, citing the Supreme Court's decision in Tata Iron & Steel Co., Ltd. v. State of Bihar, which requires a real and pertinent territorial connection for legislative competence. Conclusion: The court concluded that the assessing officer's imposition of tax on raw materials purchased outside Orissa was based on a misconception of the OVAT Act. The assessment order violated Article 286 of the Constitution and Section 4 of the CST Act. The court quashed the impugned assessment order dated July 8, 2008, and allowed the writ petition. The judgment emphasized that the OVAT Act cannot have extra-territorial operation and cannot tax transactions outside Orissa. Separate Judgment: I. Mahanty J. concurred with the judgment.
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