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TMI Blog2015 (11) TMI 353X X X X Extracts X X X X X X X X Extracts X X X X ..... ch resell shall be subject to levy of tax under the Act. In other words, if the selling dealer in a series of sale purchases goods by giving declaration in Form XXXIV, he has to sell the same to another registered dealer in the State of Orissa in a manner that would be subject to levy of tax under the Act. It is not for the selling dealer to go after the purchasing dealer to find out as to in what manner he utilized the goods, which it has purchased on the strength of the Declaration Forms in order to be entitled to the deduction. Such a requirement would fasten an impossible burden on the selling dealer. It is the purchasing dealer, who is getting exemption on fulfillment of certain conditions. Therefore, if goods purchased on the basis of the declaration are put to a different use, the benefit of exemption is to be denied to it, i.e. the purchasing dealer. The selling dealer cannot be faulted if there is any diversion or change of user. - there is no conflict of opinion in the decisions rendered by this Court in both the aforesaid cases, i.e. State of Orissa vrs. M/s. Sahoo Traders and Tilakraj Mediratta vrs. State of Orissa, (1992 (2) TMI 338 - ORISSA HIGH COURT) - Appeal dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nafter referred to as 'the Act' for short) as per the assessment order dated 22.02.1996. On the allegation that some portion of the turnover of the petitioner escaped assessment, the Sales Tax Officer started proceeding under Section 12 (8) of the Act. Despite notice, the petitioner did not appear. Consequently, the Sales Tax Officer proceeded ex parte on the basis of the materials available on record, and by order dated 30.08.1997 raised an extra demand of ₹ 41,635/-. According to the Sales Tax Officer, during the material period the petitioner effected purchase of rice-bran worth ₹ 8,91,164.97p. from the registered dealers free of tax on the strength of Declaration Form XXXIV with clear stipulation in the declaration for resale thereof inside the State of Orissa in a manner so that such resale would be subject to tax under the Act. The petitioner, however, in alleged contravention of Section 5(2)(A)(a)(ii) of the Act sold the same to S.S.I. Units free of tax against the Declaration Form 1-D thereby attracting the tax liability as envisaged in the second proviso prescribed therein. Against the aforesaid order made under Section 12 (8) of the Act, the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f computation of taxable turnover. In other words, a selling dealer who produces evidence to show that it has sold goods covered by notification issued under section 6 and the conditions and exceptions are complied with, is entitled to a deductions while its taxable turnover is computed. The selling dealer in order to be entitled to the deduction has to produce at the time of assessment the declaration Form 1-A which it has obtained from the purchasing dealer. In the instant case, there is no dispute that the purchasing dealer had issued Form 1-A to the petitioner. It is also not disputed that the certification of the Unit is in terms of the requirement of entry 26-A of the list of exempted goods. According to the department, if the goods have not been utilized for the purpose indicated in the declarations, deduction to the selling dealer is not to be allowed. In our view, the stand is fallacious. It is not for the selling dealer to go after the purchasing dealer to find out as to in what manner he utilized the goods which it has purchased on the strength of the declaration forms in order to be entitled to the deduction. Such a requirement would fasten an impossible burden on the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m:-- (a) his turnover during that period on:- (i) The sale of any goods notified from time to time as tax free under Section 6 and of the packing materials, if any, in respect of such goods. (ii) sales to a registered dealer of goods specified in the purchasing dealer's Certificate of Registration for resale by him in Orissa in a manner that such resale shall be subject to levy of tax under this Act; and on sales to a registered dealer of containers or other materials for the packing of such goods: xx xx xx xx 6. A cursory reading of the aforesaid provisions shows that, under Section 5(2)(A)(a)(i) of the Act the sale of any goods notified from time to time as tax free under Section 6 is deducted from the gross turnover of a selling dealer for the purpose of computation of a taxable turnover. In other words, a selling dealer, who produced evidence to show that it has sold goods covered by notification issued under Section 6 and the conditions and exceptions are complied with, is entitled to a deduction while its taxable turnover is computed. So far as Section 5(2)(A)(a)(ii) is concerned, it is found that when a selling dealer otherwise entitled to tax free purcha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es the declaration given by it. Adverting to the literal interpretation of the provision of Section 5(2)(A)(a)(ii) of the Act, this Court held that, in interpreting a particular provision when the language of the provision is clear and unambiguous, it is not for the Court to search for any hidden intention. It was further held that, if the selling dealer has purchased the goods in a series of sale by giving declaration in Form XXXIV and has sold the same to another registered dealer, that purchasing dealer is entitled to certain tax exemption and produces declaration in Form 1-A, then the selling dealer, who had purchased goods by giving declaration in Form XXXIV, has contravened the declaration given by it and he has violated the provision in Section 5(2)(A)(a)(ii) of the Act. 9. Both the decisions have dealt with different subjects, different texts and different provisions of the Act. The consequence that followed so far as the assessee is concerned in both the cases are different. Contextually also both the cases are different. 10. It is found that in State of Orissa vrs. M/s. Sahoo Traders (supra) this Court noticed the case of Tilakraj Mediratta vrs. State of Orissa (sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been subject to levy of tax under the Act and, therefore, there is no contravention of the declaration given by the selling dealer in Form XXXIV. Same is the contention raised by Mr. J.B. Sahoo and other learned counsels appearing for the petitioners in the present cases, and relying on a catena of decisions, which we do not feel inclined to reproduce here for the sake of brevity, have contended that this Court in State of Orissa vrs. M/s. Sahoo Traders (supra) has not correctly decided the issue. Whether the case State of Orissa vrs. M/s. Sahoo Traders (supra) has been correctly decided, is a question beyond the reference. The reference has been made on the supposition that there is conflict of opinion in State of Orissa vrs. M/s. Sahoo Traders (supra) and Tilakraj Mediratta vrs. State of Orissa (supra). We have to see whether there is any conflict of opinion and find out if there is conflict of opinion, which of the decisions holds the field. We have already held in paragraph-9 of the judgment that both the decisions have dealt with different subjects, different texts and different provisions of the Act and they are contextually different. In view of such fact, we do not fee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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