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TMI Blog2009 (8) TMI 1086X X X X Extracts X X X X X X X X Extracts X X X X ..... -8-2009 - DAS B.P. AND MAHANTY I. , JJ. B.P. DAS J. This sales tax revision has been filed under section 24(1) of the Orissa Sales Tax Act, challenging the order dated April 15, 2002 passed by the Full Bench, Orissa Sales Tax Tribunal in S. A. No. 617 of 2001-02 for the assessment year 1998-99, confirming the order of assessment dated January 27, 2001 passed under section 12(4) of the Act by the Sales Tax Officer, Circle II, Cuttack and the first appellate order dated July 20, 2001 passed by the Assistant Commissioner of Sales Tax, Cuttack II Range, Cuttack. The facts of the case are as follows: The petitioner, which is a private limited company incorporated under the Indian Companies Act, established a new small-scale industrial unit to manufacture corrugated cardboard boxes, which in common parlance are understood by the Department of Industry and the Sales Tax Officers, as packing materials . Hundred per cent of the petitioner's buyers are registered dealers, whose registration certificates disclose that they are not only entitled to purchase and sell goods but are also entitled to purchase packing/packaging materials to be used for packing the goods dealt in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,848 5,49,632 13,94,328 2000-01 1,50,13,133 21,93,022 6,00,526 87,721 6,88,247 20,82,575 2001-02 87,92,030 46,32,748 3,51,681 1,85,310 5,36,991 26,19,566 According to the petitioner, as per the aforesaid calculation, it is entitled to get Rs. 26,19,566 till March 31, 2002 as against Rs. 26.20 lakhs. But the assessing authorities while making the assessment have calculated the sales tax exemption, at a higher rate, i.e., 12 per cent in case of finished goods and eight per cent and 12 per cent in case of raw materials and concluded the assessment. Against the aforesaid order of assessment, the petitioner preferred first appeal, which was carried to the Tribunal in second appeal, which confirmed the order of assessment as well as the appeal. The following questions of law are raised to be answered before this court: (A) Whether for the purpose of computing the ceiling for exemption of sales tax, the authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e aforesaid assessment year. The finding of the Sales Tax Officer is that a person availing of the benefits of exemption under one notification cannot avail of the benefits of concession coming under another section, i.e., to say, according to the Sales Tax Officer, when an assessee claims exemption as per the IPR 1996 and purchases raw material against declaration in form IV and also sells his finished product against the declaration in the same form, the claim for adoption of tax at the rate of four per cent against his purchase and sale for calculation of tax amount is impermissible. So far as the sales and purchase made against the declaration form IV are subject to concessional rate of tax at four per cent under entry 48 of the List C of the rate chart made under the OST Act. According to him, two tax benefits cannot be granted simultaneously. It is alleged that an assessee while enjoying the tax holiday under the IPR cannot be permitted to claim concessional rate under entry 48 of List C of the rate chart, while computing the rate of tax against which he availed of exemption. Therefore the Revenue has adopted the full rate of tax, i.e., eight per cent and 12 per cent on pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is available to a maximum limit of amount fixed under it and such limit is to be fixed with reference to prescribed percentage of fixed capital investment in the case of new industrial undertaking or in case of expansion or diversification with reference to new investment in fixed assets and that a time-limit is fixed within which such incentive is available. If a unit reaches the admissible amount before the time-limit fixed, it will not be eligible for incentive thereafter. With these common conditions, it is for the eligible industrial unit to exercise option in writing before availing of the incentive benefit. The eligibility and the conditions of tax advantage has been equally envisaged on the same basis in the case whether the assessee opts for deferment scheme or for exemption scheme. The extent of advantage offered in both the scheme is the same except that in one case the assessee collects the tax payable by him on the transactions, keeps it with him and hands over the same to public exchequer at a later stage at a point of time envisaged under the scheme without interest charge thereon whereas in the case of exemption scheme the assessee is not subjected to tax leviable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke the two exemptions operating on the same plain differently in the case of two different assessees in the manner of computing the adjustment of taxable income depending on exercise of their option, when there is no such foundation for different treatment in the scheme itself. That obviously cannot be the outcome of a fair and harmonious interpretation of a statute. On principle, unless there is clear provision, a construction which leads to such dichotomy has to be avoided. We have further come across a Division Bench judgment of the Kerala High Court on the self-same issue in the case of P. Narendra Menon v. State of Kerala [2009] 23 VST 66. In view of the facts and submissions noted hereinabove and in the light of the case law cited, we are of the considered opinion that when the State Government issues a notification for providing concession in tax, it would be assumed that the Government is well aware of the concessions otherwise available to the dealer under the Act and whatever is given under the notification is over and above what is provided under the statute. In other words, when the benefit under the IPR, 1996 was promulgated with new industries becoming entitled ..... X X X X Extracts X X X X X X X X Extracts X X X X
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