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TMI Blog1976 (2) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... nding with 30th June, 1966, and on 13th May, 1967, for the quarter ending with 31st March, 1967. Revised returns were, however, filed for those quarters on 29th January, 1968. The assessing officer did not accept the revised returns as not being in accordance with law, inasmuch as those were filed beyond three months from the due dates and proceeded to complete the assessments on the basis of the original returns and materials collected by him during the assessment proceedings. The assessing officer found that the assessee has been supplying goods to various institutions of the Government throughout the State, such as the Executive Engineer, Public Health Divisions I and II at Bhubaneswar, Executive Engineer, Public Health Division, Cuttack, Executive Engineers at Sambalpur, Baripada, Rourkela, etc. The accounts were rejected and the assessing officer made an assessment according to his best of judgment under section 12(4) of the Act by adopting an estimate of all the sales within the State of Orissa. 3.. In appeal, only one ground was pressed, namely, levy of interest amounting to Rs. 462.24 raised by the assessing officer under section 12(4-a) of the Act was not justified, but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f its business at any other place. 6.. It is now necessary to refer to the provisions of the Act and the Rules made thereunder. "Dealer" has been defined under section 2(c) of the Act to mean: " .......... any person who carries on the business of purchasing or selling or supplying goods in Orissa, whether for commission, remuneration or otherwise and includes a department of the Government which carries on such business and any firm or a Hindu joint family, and any society, club or association which purchases goods from or sells or supplies goods to its members and also includes a casual dealer as hereinbefore defined." Section 3 prescribes the taxing authorities. Under section 3(3): "The State Government may appoint such other persons under any prescribed designation including an Additional Commissioner and a Deputy Commissioner to assist the Commissioner and they shall exercise such powers and perform such duties as may be conferred or imposed by or under the provisions of this Act within such local area as may be assigned to them by the Commissioner." Section 4, as far as relevant, provides: "(1) Subject to the provisions of sections 3-B, 5, 6, 7 and 8 and with ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness" and "principal place of business" have been defined: "Place of business means any place where a dealer sells or purchases any goods or keeps accounts of sales or purchases;" "Chief place of business means in relation to a dealer in any area within the jurisdiction of an Assistant Sales Tax Officer or Sales Tax Officer, as the case may be, the place of business mentioned as his chief place of business in the certificate of registration granted under rule 7;" "Principal place of business means in relation to a dealer who has more than one place of business in the State of Orissa, the place of business mentioned as his principal place of business for the State in his application for registration: Provided, however, that the principal place of business shall be the same as the chief place of business if the dealer has only one chief place of business and in case the dealer has more than one chief place of business the principal place of business shall be one of them." Rule 6 provides for application for registration. Form 11 is the statutory form of application for registration. Clause 5 of the said form reads thus: "The gross turnover of the business (including that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hroughout the entire State. For convenient administration of the statute, the State has been divided into various circles and each circle has been placed in-charge of an appropriate officer. Under the statutory scheme, the dealer is to disclose his place of business and in case he has more than one, all additional places of business. He is also required to disclose his chief place of business. When a dealer has turnover liable to tax under different circles, he has obligation to apply for registration in the respective circles. His liability under section 4(5) of the Act begins the moment he has any sales. There is no basic exemption (as in the first case up to Rs. 10,000) and every sale made by him becomes exigible to tax. This is on the footing that all his turnovers throughout the State were taken into account. Thus, when a registered dealer within one circle starts business in any other circle, he has obligation from the very commencement to ask for registration and pay tax on his sales turnover. The scheme conceives of the position that one dealer may have several places of business, some located within the same circle and others located in different circles. The scheme also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the scheme under the Act comprehends a course which if followed there would be no occasion for double assessment and in case the assessee faces an assessment where all the turnover is taken into account, it would be open to him when he is called upon in different circles for the purposes of assessment to show that he has already been assessed for the entire turnover and there is no question of assessing the said turnover twice. The difficulty envisaged by Mr. Patnaik would certainly arise in a case where a dealer like the assessee while carrying on business in several circles does not choose to get himself registered in the other circles, apply for a consolidated return in respect of the turnovers in different circles, but seeks to contend that though he has his place of business at Puri, the Sales Tax Officer of Puri 1 Circle is entitled only to assess the sales turnover of transactions carried within the Puri 1 Circle. 9.. Two decisions have been referred to in the decision of the Tribunal, namely, State of Orissa v. Damodar Sahu [1972] 30 S.T.C. 262. and M/s. Keshrichand Pushraj v. Commissioner of Sales Tax, Orissa O.J.C. No. 388 of 1967 disposed of on 31st March, 1970 (Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore this court was summarised thus: "......Mr. Mohapatra, the learned standing counsel, concedes before us that purchase tax has been paid in respect of both the turnovers on the basis of a joint return filed before the Sales Tax Officer, Cuttack 1 Circle. He however contends that in respect of turnover of purchases held at Tarpur, the Sales Tax Officer, Cuttack 11 Circle, was justified in proceeding with the assessment as Tarpur was within his jurisdiction. Legally, the contention of the learned standing counsel is sound and must be upheld. This is supported by rule 26 of the Orissa Sales Tax Rules, which runs thus: (The rule was quoted). It would appear from the aforesaid rule that when a dealer has more than one place of business, he must approach the Commissioner for giving sanction to or the Commissioner suo motu may permit the filing of a consolidated return before the sales tax authority of one place of business. If such an order is passed, the dealer shall be deemed to be a dealer of the circle in which he has been permitted to submit a consolidated return. Admittedly, in this case, the petitioner did not take the permission of the Commissioner. It did not comply with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de to various offices situated in other circles. The assessee must pay costs to the department. Hearing fee is assessed at rupees two hundred. PANDA, J.-I agree. DAS, J.-I agree Reference answered accordingly. Appendix [The judgment of the Division Bench of the Orissa High Court consisting of G.K. MISRA, C.J., and S. ACHARYA, J., in Keshrichand Pushraj v. Commissioner of Sales Tax, Orissa, and Others (O.J.C. No. 388 of 1967) delivered on 31st March, 1970, is printed below: ] KESHRICHAND PUSHRAJ V. COMMISSIONER OF SALES TAX, ORISSA G.K. MISRA, C.J.-The petitioner is a partnership firm. It purchases jute. It has two places of business-one at the Malgodown in Cuttack City and the other at Tarpur in the district of Cuttack. Without giving separate returns of its turnovers of purchases in Cuttack City and Tarpur before the Sales Tax Officer, Cuttack 1 Circle, and Cuttack II Circle, respectively, the petitioner filed one joint return in respect of both the turnovers before the Sales Tax Officer, Cuttack I Circle. In respect of the turnover of purchases at Tarpur, the petitioner gave a nil return with an accompanying statement that the return of the same had been filed bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctly justified in passing an order of assessment. 4.. Despite our holding in favour of the revenue that law justifies the impugned assessments, we are inclined to quash those assessments as it has come to our notice that, in fact, purchase tax has been paid on the gross turnover of both the places of business. There is therefore no reason why the dealer should be pursued further. We accordingly quash the impugned assessments in respect of quarters ending 31st December, 1963, and 31st March, 1964. The assessments made by the Sales Tax Officer, Cuttack I Circle, on the consolidated return remains valid. 5.. In the result, the writ application succeeds; but as the petitioner violated law it has to pay costs of this application. Hearing fee Rs. 100. ACHARYA, J.-I agree. [The judgment of the Division Bench of the Orissa High Court consisting of R. N. MISRA and P. K. MOHANTI, JJ., in Carona Sahu Company Limited v. Commissioner of Sales Tax, Orissa, and Others (O.J.C. No. 79 of 1973) delivered on 30th August, 1974, is printed below: ] CARONA SAHU COMPANY LIMITED V. COMMISSIONER OF SALES TAX, ORISSA R.N. MISRA, J.-The petitioner, a public limited company, manufactures footwears of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idated return was pending disposal before the Commissioner. In respect of the year 1971-72, the assessing officer, however, did not include the turnovers of Tinikonia Bagicha and Choudhury Bazar shops and excluded the same. By then the application for making of a consolidated return had been rejected by the Commissioner. In due course, the Sales Tax Officer, Cuttack-1 (West) Circle, within whose jurisdiction admittedly the places of business at Tinikonia Bagicha and Choudhury Bazar come, proceeded to assess the petitioner in respect of its turnovers and on the finding that returns had not been made as required under the Act, imposed penalties under section 11(3) of the Act. Demands were raised and as they were not satisfied in spite of notice, penalties were also levied under section 13(5) of the Act. This application was filed on 19th January, 1973, asking for a writ of certiorari to quash the assessments raised by the Cuttack-1 (West) Circle, for the issue of a writ of mandamus requiring the Commissioner of Sales Tax to reconsider the application for consolidation of returns and for other ancillary reliefs. 2.. The Commissioner of Sales Tax by his order dated 24th November, 197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We accordingly decline to interfere in the matter so far as rejection of the prayer for consolidation of returns is concerned. If there be any changed circumstances, or if there be any other cogent ground upon which the petitioner wants to approach the Commissioner for modification of his order, it is open to the petitioner to do so. What appropriate direction the Commissioner would give is a matter for him in exercise of his discretion and we do not intend to say anything about it. 3.. There is no doubt that the petitioner became liable to make returns as required under section 11 of the Act in Cuttack-1 (West) Circle in respect of its two places of business located within that jurisdiction and even without obtaining the permission to file consolidated returns at Rourkela, the petitioner omitted to file returns in compliance with the statutory requirement before the appropriate officer in Cuttack-1 (West) Circle. Therefore, the levy of penalty under section 11(3) of the Act is not open to dispute. In fact, Mr. Mohanty for the petitioner conceded That there had been a default and in view of the default, we do not find that the assessing officer acted without jurisdiction in rais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porating the turnovers of these two shops and computed the tax payable by the petitioner on such basis. In respect of the same transactions, the Sales Tax Officer, Cuttack-I (West) Circle, has raised fresh demands. Undoubtedly, once consolidation of return is refused, the petitioner is obliged to make a return of its turnover for the two shops at Cuttack to the Sales Tax Officer, Cuttack-1 (West) Circle, and the assessment made by the Cuttack-1 (West) Circle cannot be said to be without jurisdiction. Mr. Mohanty for the petitioner relied upon a decision of this court in the case of Keshrichand Pushraj v. Commissioner of Sales Tax, Orissa, and OthersPage 417 supra. (O.J.C. No. 388 of 1967 decided on 31st March, 1970). There, this court found that tax had been paid in a wrong jurisdiction and when fresh set of demands were raised in respect of the same turnover for which tax had been paid, the second set of assessments in the appropriate jurisdiction were quashed. The direction given by this court in the said case undoubtedly supports Mr. Mohanty's submission before us, but we are not inclined to quash the assessments made by the Sales Tax Officer, Cuttack-1 (West) Circle. While not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... represented to him after demand notices were served to the effect that tax in respect thereof had already been paid at Rourkela and, therefore, the demands raised by the Cuttack-1 (West) Circle must be deemed to have been satisfied. Merely because there has been default on the part of the petitioner to point out this fact to the Sales Tax Officer at Cuttack would not justify levy of penalty under section 13(5) of the Act. The very foundation for imposition of penalty under section 13(5) of the statute must vanish once it is found that sufficient money to meet the demands stood credited to the treasury by way of sales tax at Rourkela. We would, accordingly, hold that the penalties levied under section 13(5) of the Act for these two periods, namely, quarter ending 31st March, 1970, and for the year 1970-71 must stand annulled. 7.. The writ application is allowed in part. A writ of mandamus shall issue to the opposite parties to satisfy the demands raised by the Cuttack-1 (West) Circle for the period ending 31st March, 1970, and for the year 1970-71 out of the excess deposits made in the Rourkela Circle for the corresponding period. If there be any excess amount to be paid after ..... X X X X Extracts X X X X X X X X Extracts X X X X
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