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TMI Blog2015 (6) TMI 1050X X X X Extracts X X X X X X X X Extracts X X X X ..... ng discussion, it must be observed by us that the observation of opposite party Nos.1 & 2 by not accepting the copies of receipts issued to the transporter in compliance with the circular issued by the Department in 1999 is contrary to section 7(4) of the O.E.T. Act, 1999 (unamended) and, as such, the petitioner is entitled to the benefit of such adjustment. Validity and legality of impugned orders - reasonable opportunity has been given to the petitioner in accordance with law to produce evidence - Held that:- reasonable opportunity to produce the original Books of Accounts with original money receipt from the transporter has not been afforded to the petitioner because the impugned order does not indicate that the petitioner was given opportunity to produce the Books of Accounts and the original money receipts in support of his claim for adjustment of payment at the check gate. Mere observation of the learned Assessing Authority that the petitioner was given opportunity to produce the satisfactory proof for completeness and correctness of the document submitted is without any compliance as per law. On the other hand, we are of the opinion that reasonable opportunity has not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence in support of deduction of tax while computing the same by the Assessing Authority and, similarly, the Appellate Authority, confirmed the orders of the Assessing Authority, ignoring the norms and authority of the Hon ble Apex Court. 2. The factual matrix leading to the case of the petitioner is that he was a registered dealer under the Orissa Sales Tax Act, 1947 (hereinafter called the O.S.T. Act ) as well as Orissa Entry Tax Act, 1999 (hereinafter called the O.E.T. Act ) and deals in mills-made and handloom clothes. During 2001-2002, he paid ₹ 1,17,008/- through the transporter to the border check gate officer, who issued the common receipt in the name of the transporter as entry tax of the check gate while the goods entered into the State of Orissa. According to the petitioner, on 18.12.1999, a circular bearing No.25118/CT was issued by opposite party No.3 to all concerned officers directing to issue consolidated receipt in respect of one truck of goods to the transporter, who will issue a copy of the receipt to the party while the party will take delivery of goods from the transporter. This circular also depicts that where large number of dealers bring goods in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the petitioner for production of Books of Accounts for examining the correctness and completeness is illegal, as section 7(4) of the O.E.T. Act requires the petitioner to be given an opportunity to produce evidence and, in the absence of the same, the order of the learned Assessing Authority is vulnerable, void and illegal. According to him, no reasonable opportunity was afforded to the petitioner to produce evidence for which the order of the learned Assessing Authority is perverse. He further submitted that the order of opposite party No.2 is equally bad in law because the decision in the case of M/s. Ram Krishna Raj Kumar (supra) has not been followed, which clearly states that in the absence of statutory notice being served to produce the Books of Accounts, the order of the learned Assessing Authority is wrong and illegal. It was his further submission that the order passed by opposite party No.2 is illegal by not following the circular issued by the Department in 1999, which speaks that the check gate officer issues money receipt to the transporter, who carries goods of a large number of dealers in one truck, and copy of list of dealers is retained while another copy is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o copies of the original receipts involving tax of ₹ 3,361/-, which were disallowed by him, and original check gate money receipts for ₹ 3,830/- were only allowed by the Assessing Authority for deduction from the tax computed. He did not accept the other photo copies of the consolidated receipts in the name of the transporter and other forms submitted by the petitioner, for which, as per section 7(2) of the O.E.T. Act, to the best of his judgment passed the order to pay the tax of ₹ 1,76,552/-. In his order, the learned Assessing Authority has observed that the petitioner was given opportunity to produce proof of correctness and completeness of the statement and the entry tax paid under section 7(4) of the O.E.T. Act. But, till the date of assessment, the petitioner could not produce and furnish any satisfactory payment of tax at the check gate against the photo copies of the check gate receipts furnished. The learned Appellate Authority while passing the order followed the O.S.T. Rules and O.E.T. Rules and agreed that the decision in the case of M/s. Ram Krishna Raj Kumar (supra) should be followed; but the Xerox copies submitted by the petitioner claiming adjust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e otiose. It is true that the admissibility of documents is necessary before a quasi-judicial authority. Copies of documents as per Annexure-3 series go to show the name of the petitioner along with other dealers, the amount of property transported, and the amount of tax paid with necessary receipt number. Similarly, copies of documents containing seal of the Sales Tax Officer cannot be said to be without proof of payment of entry tax by the transporter and the same are duly authenticated by the Sales Tax Officer, which should have been accepted for adjustment towards payment of tax in view of the circular issued in 1999 (supra) by the Department. 8. Section 7 under Chapter-III, of the O.E.T. Act has been introduced with amendment on 19.05.2005. Since incident of payment of tax relates to 2001-2002, the law prior to amendment has to be followed. Section 7(2) of the said Act has been introduced in Orissa Entry Tax Act, 2000 vide Orissa Act 5 of 2000. The erstwhile section 7(2) of the O.E.T. Act prescribes in the following manner : Before any dealer submits a return under subsection (1), he shall, in the prescribed manner, pay in advance the full amount of tax payable by him o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passing the best judgment as per section 7(4) of the erstwhile O.E.T. Act, 1999 cannot be said to have been complied with. Be that as it may, the order of the learned Assessing Authority (opposite party No.1) having not followed the provisions of the O.E.T. Act is vulnerable. 10. Similarly, the order of the learned First Appellate Authority confirming the order of the learned Assessing Authority with the observation that Xerox copies of documents are not admissible without following the procedure, as depicted under the circular of 1999 issued by the Department (supra), by interpreting the same for its applicability for the unregistered dealer is equally bad in law. The observation of opposite party No.2 that Xerox copy of any document is inadmissible in legal proceeding unless it is certified by the appropriate authority is also equally beyond the legal principles before the quasijudicial authority. Opposite party No.2 has not properly evaluated the copies of documents produced by the petitioner for which his reasons for rejecting the appeal and confirming the order of the Assessing Authority is also vulnerable one. From the foregoing discussion, it must be observed by us that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent impugned order of assessment has been passed. Against such order, first appeal lies under section 16 of the O.E.T. Act, 1999 to such authority as prescribed as Appellate Authority. Section 16 has also undergone changes being amended in 2005 vide Orissa Act 10 of 2005 w.e.f. 19.05.2005. It is reiterated that the assessment year being 2002-2002, the unamended provisions of section 16 will apply. So, the impugned order of the Appellate Authority has been passed as per erstwhile provisions under section 16 of the O.E.T. Act, 1999. On further scrutiny, it appears that section 17 of the O.E.T. Act, 1999, as stipulated before it was amended in 19.05.2005, deals with the appeal against the order of the Appellate Authority to the Tribunal. Similarly, the unamended provision of section 18 of the O.E.T. Act, 1999, prior to its amendment, deals with revision by the Commissioner of orders prejudicial to the interest of revenue. Section 19 of the said Act, before its amendment, w.e.f. 19.05.2005 deals with the appeal to the High Court against the order passed under section 18. After amendment, section 19 contains revisional power of the High Court in certain matters where order has been pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take into consideration all the matters agitated by the appellant having wide jurisdiction, the present petition under Art.226 and 227 of the Constitution of India is not maintainable. Our view is fortified with the decision in the case of Titaghur Paper Mills Co. Ltd. Vs. State of Orissa reported in (1983) 53 STC page-315 S.C. where Their Lordships have been pleased to observe that where the petitioner has alternative remedy by way of appeal and second appeal, no relief can be granted under Art.32 and 226 of the Constitution. 13. After extensive discussions, as made above, due to the existence of a right to file a second appeal and revision available to the petitioner against the impugned orders, which are otherwise defective, as discussed above, can be agitated in the second appeal. Apart from this, it is reported in the case of Haribanslal Saharia and another Vs. Indian Oil Corporation Limited and others reported in 2004(I) OLR S.C. page-81, where Their Lordships have been pleased to observe : In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three categories (1) Where the writ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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