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TMI Blog2022 (4) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... of the ACST is supported by cogent reasons set out founded on materials available on record or not - application of independent quasi judicial mind - reversal of finding recorded by the first appellate authority supported by cogent reason and based on evidence available on respective records. Whether on the facts and in the circumstances of the case, the Tribunal is justified in holding that it has little scope to examine the assessment record particularly when the question of jurisdiction as regards initiation of proceeding under Section 12(8) of the Orissa Sales Tax Act, 1947, has been raised by the Petitioner? - HELD THAT:- The Court finds that the reopening of the assessment was based on the reports of the Circle IST and the AG Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments of supply of ballast and the cost of transportation till the site of stacking then, the Assessee cannot possibly seek to avoid including the transportation cost by relying on Section 5 (2) (A) (iii) of the OST Act - Issues are answered in favour of the Department and against the Assessee and it is held that the Tribunal was right in including the transport charges as part of the taxable turnover. As regards other issues, the Court finds that as a logical corollary of treating the contract as one composite contract where the elements of supply of ballast and its transportation are not separately treated, is that the Department could not have proceeded to reopen the assessment on the basis that the contract must be treated as only fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Appeal Case Nos. AA.150 151(SA.I) of 98-99 for the said two years. It must be noted here that the ACST, i.e. the first Appellate Authority, had reversed the two assessment orders dated 13th May,1998 passed by the Sales Tax Officer, Sambalpur-1 Circle, Sambalpur (STO) under Section 12 (8) of the Orissa Sales Tax Act, 1947 (OST Act). 3. In the effect, the STO reopened the earlier assessment made under Section 12 (4) of the OST Act in respect of the each of the years by acting on the report of the Circle Inspector Sales Tax, (Circle IST) as well as the report of the AG Audit which had objected to the fact that the supply of ballasts to the Railways by the Petitioner pursuant to a works contract had been taxed at 4% whereas it should ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the materials/documents/ evidence available on assessment record as well as the first appeal record basing on which the first appellate authority has applied the independent quasi judicial mind? F. WHETHER on the facts and in the circumstances of the case, the order of the Tribunal suffers from arbitrary exercise of power in reversing the finding recorded by the first appellate authority supported by cogent reason and based on evidence available on respective records, without referring to and/or enforcing production of such records of for a below in the second appeal filed by the opposite party? G. WHETHER on the facts and in the circumstances of the case, the Tribunal has exercised jurisdiction illegally and with material irre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned, the Court is of the view that reopening the assessment cannot be said to be without jurisdiction. Question A is therefore answered in favour of the Department and against the Assessee. 8. As regards the certificate issued by the Railways showing separately the cost of ballast and the cost of transportation, Shri Kar learned counsel for the Petitioner Assessee refers to Section 5 (2) (A) (iii) of the OST Act which states that The cost of outward freight or of delivery or the cost of installation for the purpose of sale or supply of goods by the dealer when such cost is separately charged. He accordingly submits that the said transportation charge is required to be excluded from the taxable turnover. He submits that in terms of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered. In order to examine whether the contract in question envisages supply of ballast and the transportation thereof as separate components, its wording has to be understood. It is seen that the First Appellate Authority examined in some detail the contract in question and found that it was one composite works contract which did not separately indicate the costs of supply of ballast and the transportation or delivery charges. This order by the First Appellate Authority was in favour of the Assessee in so far as it maintained that the entire works contract had to be charged at 4% and not at 12%. The said order was not challenged by the Assessee but by the Department before the Tribunal. In other words, the finding of the First Appellate A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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