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TMI Blog2007 (12) TMI 418X X X X Extracts X X X X X X X X Extracts X X X X ..... s made above, rule 94(4)(a) is not ultra vires the Act and the amount collected at the check gate by the STO is refundable to the petitioners on their adducing evidence to the effect that the fish on which tax has been collected at the check gate in fact has crossed the border exit check gate so as to reach the destination outside the State of Orissa. - - - - - Dated:- 3-12-2007 - GANGULY A.K. C.J. AND MAHAPATRA B.N. , JJ. B.N. MAHAPATRA J. Petitioners 35 in number who are the truck owners have filed this writ petition being aggrieved by the action of the opposite party No. 2, Sales Tax Officer, Unified Check Gate, Girisola, Ganjam (hereinafter called the STO ) for collecting sales tax from them on the fish transported by their trucks from the State of Andhra Pradesh to the States of West Bengal or Bihar. The reliefs sought in this writ petition are as follows: (i) The action of the STO in collecting tax on fish carried by the trucks of the petitioners from the State of Andhra Pradesh to the States of West Bengal or Bihar is contrary to law and not sustainable. Hence the sales tax so collected vide annexures 1 series, 2 series, 3 series and 4 series should be refunde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ading the fish in the State of Orissa and evaded payment of tax for which your conduct is suspicious and there is reasonable apprehension of loss of tax from the goods consigned by you. It is the further case of the petitioners that since they are not doing any business in the State of Orissa, the collection of tax under the Act from them is without any authority of law and the same amounts to gross abuse of power which infringes their right to carry on trade and business as guaranteed by the Constitution of India under article 19(1)(g) and the said action is also violative of article 301 of the Constitution. The said collection of tax has been challenged by the petitioners as without authority of law and violative of article 265 of the Constitution of India. The petitioners further challenge that rule 94(4)(a) of the Orissa Sales Tax Rules, 1947 (hereinafter referred to as, the Rules ) is ultra vires the Act and that tax cannot be imposed on the ground of likelihood of evasion of tax. Counter-affidavit has been filed by the opposite party No. 2 refuting the claim and controverting the averments made in the writ petition. It is stated in paragraph 8 of the counter-affidav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tifying the said collection. Now in the instant case, it is not disputed that the fish is brought from the State of Andhra Pradesh and while it is in transit, tax is collected by the STO at the check gate from the driver who is in-charge of the goods (fish). The most important test to be applied before imposing tax on sale or purchase is whether the title in goods has passed for a consideration and that the transaction of sale is complete. A mere transfer of goods from one place to another cannot amount to sale. Unless there has been a transfer of property no question of complete sale will arise. Admittedly, in the instant case tax has been collected at the check gate while the fish was in transit and no complete sale has been effected inside the State of Orissa. However, to check evasion of tax various provisions are provided in fiscal statute for collection of tax on ad hoc basis with necessary safeguards for setting off the same against the actual tax liability of a dealer to be determined later. Under the Act similar provisions are made in section 16A of the Act read with rule 94 of the Rules and section 12B. Under section 16A of the Act read with rule 94 of the Rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and inspect all records relating to the goods carried, which are in the possession of such driver or other person in-charge, who shall, if so required, give his name and address and the name and address of the owner of the vehicle or boat. . . Rule 94. Check-post. (1) The State Government may, by notification, direct the setting up of a check-post or erection of barrier or both at such place or places in the State as may be specified in the notification. When the check-post is set up upon a thoroughfare or road, barriers may be erected across the road or thoroughfare in the form of a contrivance to enable traffic being intercepted, detained and searched. (2) The State Government may empower any officer not below the rank of an Assistant Sales Tax Officer to be in-charge of a check-post and/or a barrier. (3)(a) The driver or the person-in-charge of the goods vehicle or boat shall stop the vehicle or boat, as the case may be, at a check-post or barrier and keep it stationary as long as it is reasonably required by the officer-in-charge of the check-post or barrier and allow examination of goods in the vehicle or the boat and inspection of all the records connected with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pposite parties without passing valid assessment order as provided under the Act allowing set-off of the said tax against determination of the actual tax liability. So far as the dealers registered under the Act are concerned, provision has been made under rule 36 of the Rules to avail set off of the tax paid at the check gate against their tax liability determined in the regular assessment order passed under the Act. Similarly, section 12B of the Act authorises a Sales Tax Officer including an officer incharge of the check gate of barriers with powers to provisionally or finally assess a casual dealer by issuing a notice in form IVA to furnish a return of estimated turnover in form IVC immediately. Section 12B of the Act reads as follows: 12B. Assessment of tax on casual dealers. Notwithstanding anything in sections 12 and 12A, it shall be open to an assessing authority, including the officer-in-charge of the check-post or barrier referred to in section 16A to make a provisional or final assessment on a casual dealer on the turnover of the purchase, or the sale of the goods, effected by him, in accordance with such Rules as may be made in this behalf. In the counter-affid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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