9911796707
TMI Blog1972 (10) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... that assessment such assessment cannot be reopened under section 12(8) subsequently on the basis of that earlier report. (2) Whether in the facts and circumstances of the case, the Tribunal was right in annulling the assessments and imposition of penalty under section 12(8) of the Orissa Sales Tax Act, 1947." The facts which gave rise to the questions indicated above are these: The assessee is a registered dealer under the Orissa Sales Tax Act. He was assessed under section 12(2) of the Act in respect of the quarters ending June, 1963, to March, 1964, by the Sales Tax Officer, Cuttack III Circle, on 31st January, 1965. The assessee's accounts were discarded and the taxable turnover was enhanced. In respect of these very four quarters n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing and the completion of the assessment by the Sales Tax Officer, 'Cuttack III Circle, it is not understood why the fraud report of the Intelligence Wing was not made available to the assessing officer. It appears that the Intelligence Wing was acting independently as assessing officer and making his own enquiry but he is not passing any information to the assessing officer in proper time. The procedure adopted by the department leads to unnecessary harassment to the assessee because very shortly after the assessment was completed and best judgment assessment was made the assessee had to face the reopening of the assessment under section 12(8) for the facts which could have been brought to his notice before the assessment is completed. I, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eturn if he is satisfied that the return made is correct and complete. If the assessing officer is not so satisfied, under sub-section (2)(a) he is to require the registered dealer to produce evidence that the return furnished is correct and complete. The registered dealer thereupon is to comply with the requirements of the notice on the dates specified. Sub-section (3) deals with the contingency where the registered dealer who has furnished a return fails to comply with the notice under sub-section (2). Upon such failure of the dealer the taxing officer is to make the assessment according to best of his judgment. Sub-section (4) deals with the situation where a registered dealer fails to furnish the return in accordance with the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part of turnover from assessment the right to bring the escaped turnover into the net of taxation is vested by a provision like section 12(8) of the Act in the assessing officer ordinarily subject to limitation as may be prescribed. In such circumstances, merely because a particular information regarding suppression was already available in the Intelligence Wing before the regular assessment under section 12(2) of the Act was made and was admittedly not utilised, cannot stand in the way of initiating a proceeding under section 12(8) of the Act. Even if the information was in the possession of the assessing officer himself, but had not been taken into account in the making of the assessment, the position would not have been different. We hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question was a suppression, Mr. Bhattacharya contends that this cannot be included in his turnover because it is a casual dealing. In support of his contention he relied upon a decision of their Lordships of the Supreme Court in State of Gujarat v. Raipur Manufacturing Co. Ltd.[1967] 19 S.T.C. 1 (S.C.)., Southern India Tea Estates Co. Ltd. v. State of Kerala[1967] 20 S.T.C. 397., Commissioner of Sales Tax v. Basta Colla Colliery Co. Ltd.[1968] 21 S.T.C. 454. and Appathurai Nadar v. Deputy Commercial Tax Officer[1972] 29 S.T.C. 681. On an analysis of these cases, excepting the Patna decision in Commissioner of Sales Tax v. Basta Colla Colliery Co. Ltd.[1968] 21 S.T.C. 454., we find that the transactions were actually not in the nature of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transaction of business, that is, a colliery had purchased the machineries with the intention of reselling them, we see no justification for the conclusion that the sale price would not be turnover. The definition of "dealer" in the Orissa Sales Tax Act includes a "casual dealer" as defined in section 2(bb). Mr. Bhattacharya contends that there must be plurality of transactions to make a person a casual dealer. We do not think there is force in the contention. Keeping in view the intention of the particular person in entering into business, the nature of the transaction and the surrounding circumstances, even a single transaction may make one a casual dealer. It is true in the definition "transactions of a business nature " have been used, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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