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2015 (6) TMI 1050 - HC - VAT and Sales TaxWhether the petitioner can take the benefit of copy of money receipt issued to the transporter carrying his goods by the check gate officer while assessing the tax payable by the petitioner - Held that - the order of the learned First Appellate Authority confirming the order of the learned Assessing Authority with the observation that Xerox copies of documents are not admissible without following the procedure, as depicted under the Circular No.25118/CT dated 18.12.1999 issued by the Department, by interpreting the same for its applicability for the unregistered dealer is equally bad in law. The observation of opposite party No.2 that Xerox copy of any document is inadmissible in legal proceeding unless it is certified by the appropriate authority is also equally beyond the legal principles before the quasi-judicial authority. Opposite party No.2 has not properly evaluated the copies of documents produced by the petitioner for which his reasons for rejecting the appeal and confirming the order of the Assessing Authority is also vulnerable one. From the foregoing discussion, it must be observed by us that the observation of opposite party Nos.1 & 2 by not accepting the copies of receipts issued to the transporter in compliance with the circular issued by the Department in 1999 is contrary to section 7(4) of the O.E.T. Act, 1999 (unamended) and, as such, the petitioner is entitled to the benefit of such adjustment. Validity and legality of impugned orders - reasonable opportunity has been given to the petitioner in accordance with law to produce evidence - Held that - reasonable opportunity to produce the original Books of Accounts with original money receipt from the transporter has not been afforded to the petitioner because the impugned order does not indicate that the petitioner was given opportunity to produce the Books of Accounts and the original money receipts in support of his claim for adjustment of payment at the check gate. Mere observation of the learned Assessing Authority that the petitioner was given opportunity to produce the satisfactory proof for completeness and correctness of the document submitted is without any compliance as per law. On the other hand, we are of the opinion that reasonable opportunity has not been given to the petitioner to produce satisfactory proof of payment of tax to the transporter or incidence of payment of tax towards adjustment of tax at the check gate while submitting the return for the year 2001-2002. Maintainability of writ petition - Held that - it is found that the question of enforcement of any of the fundamental rights, in the present facts and circumstances, does not arise. Even if opportunity was not given to submit the documents, but there was hearing of the case and judgment has been passed and, as such, it cannot be said that principle of natural justice is not followed. In view of the discussions in point Nos.(i) & (ii), we are of the considered view that there is no compliance with the provisions of the O.E.T. Act and the circular issued by the Department under the relevant rules framed under the said Act. Therefore, it must be held that the impugned orders of the Assessing Authority and the Appellate Authority have been passed without jurisdiction. Although alternative remedy as per the decision reported in Titaghur Paper Mills Co. Ltd. Vs. State of Orissa 1983 (4) TMI 49 - SUPREME Court is available, but by virtue of the later decision of the Hon ble Apex Court in the case of Haribanslal Saharia and another Vs. Indian Oil Corporation Limited and others 2002 (12) TMI 564 - SUPREME COURT , entertaining the writ petition is not barred, even if alternative remedy is available. It is, therefore, held that the present writ petition is maintainable. The impugned orders are quashed and the matter is remitted back to the opposite party No.1 with a direction to reassess the incidence of payment of tax for the year 2001-2002 within a period of three months from the date of receipt of copy of this order after giving reasonable opportunity to both parties to produce their respective evidence. - Petition disposed of
Issues Involved:
1. Whether the petitioner can take the benefit of copy of money receipt issued to the transporter carrying his goods by the check gate officer while assessing the tax payable by the petitioner? 2. Whether reasonable opportunity has been given to the petitioner in accordance with law to produce evidence so as to make the impugned orders valid and legal? 3. Whether the writ petition is at all maintainable in the eye of law? Issue-wise Analysis: Point No.(i): The petitioner, a registered dealer under the Orissa Sales Tax Act, 1947 and Orissa Entry Tax Act, 1999, claimed to have paid entry tax at the check gate and produced receipts, including photocopies, which were disallowed by the Assessing Authority. The Assessing Authority allowed only original receipts for deduction and passed an order to pay additional tax. The Appellate Authority upheld this decision, stating that photocopies are inadmissible without certification. The court noted that the circular issued in 1999 by the Commissioner of Commercial Tax allowed for consolidated receipts issued to transporters, which should be accepted for tax adjustment. The court found that the Assessing and Appellate Authorities did not properly evaluate the documents and that the petitioner is entitled to the benefit of such adjustment. Point No.(ii): The court observed that reasonable opportunity to produce original Books of Accounts and money receipts was not afforded to the petitioner. The Assessing Authority's order did not indicate that the petitioner was given a proper chance to produce these documents. The mere observation that the petitioner was given an opportunity without compliance with legal requirements was insufficient. The court concluded that reasonable opportunity was not given to the petitioner, making the impugned orders invalid. Point No.(iii): Regarding the maintainability of the writ petition, the court discussed the relevant provisions of the O.E.T. Act, 1999 and noted that there is a specific provision for a second appeal before the Tribunal. The court referred to the decision in Titaghur Paper Mills Co. Ltd. Vs. State of Orissa, which states that no relief can be granted under Articles 32 and 226 of the Constitution when an alternative remedy is available. However, the court also considered the decision in Haribanslal Saharia and another Vs. Indian Oil Corporation Limited and others, which allows for writ jurisdiction in cases of fundamental rights enforcement, failure of natural justice, or orders without jurisdiction. The court found that the impugned orders were passed without jurisdiction and that the writ petition is maintainable despite the availability of an alternative remedy. Conclusion: The court quashed the impugned orders and remitted the matter back to the Assessing Authority for reassessment within three months, ensuring reasonable opportunity for both parties to produce evidence. The writ petition was disposed of accordingly.
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