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TMI Blog2022 (8) TMI 697X X X X Extracts X X X X X X X X Extracts X X X X ..... to the local area during the period from 2009-10 till 2014-15 and subsequently capitalized in the year 2014-15, had already suffered entry tax - HELD THAT:- It is glaring on face of record that the instruction provided to the Additional Standing Counsel by the Assessing Authority pursuant to direction of this Court vide Order dated 11.07.2022 is incorrect - the onus lies on the assessee to satisfy the Assessing Authority by adducing evidence to the effect that subject-goods have already been subjected to entry tax or that the entry tax has been paid by any other person or dealer under the OET Act. This Court is of the considered opinion that as the explanation of the petitioner-company has not been given due consideration by the Assessing Authority. As has already been held that the assessment in respect of the tax periods from 01.04.2013 to 31.03.2014 out of the impugned tax periods from 01.04.2013 to 30.09.2015 undertaken for assessment under Section 10 is time-barred, and the assessment is required to be set aside for fresh consideration pertaining to rest of the periods, i.e., from 01.04.2014 to 30.09.2015, the Assessing Authority is also required to consider the submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od. 3. The fact submitted by the petitioner and not disputed by the opponent reveals that by Order dated 08.01.2018 the audit assessment under Section 9C of the OET Act was passed by Joint Commissioner of Sales Tax, Angul Range, Angul pursuant to Audit Visit Report by raising a demand of Rs.9,03,81,036/- pertaining to the tax periods covering 01.04.2013 to 30.09.2015. The self-same person in the capacity of Additional Commissioner of Sales Tax of Angul Range has sought to invoke power under Section 10 contemplating reassessment for the said tax periods by issue of Notice dated 04.12.2018 on the ground that unaccounted for purchases of tangible assets, plant and machinery, to the tune of Rs.6019,11,90,908/- shown as addition during the year 2014-15 escaped assessment while completing assessment under Section 9C. The said authority vide communication dated 30.04.2019 intimated that the notice issued for reassessment under Section 10 being issued due to inadvertence has been withdrawn. On account of this fact, this Court disposed of W.P.(C) No. 5047 of 2019 wherein said notice was under challenge. On 22.06.2019, the Deputy Commissioner of CT GST, Angul Circle, Angul issued Notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s submitted that the petitioner-company incurred capital work-in-progress expenses and project development cost during the period from the financial year 2009-10 to financial year 2013-14 towards construction/installation of the thermal power plant. 4.2. It is further elaborated that the power plant project normally takes several years in conceptualizing, designing, erection, installation and commissioning. The petitioner has incurred capital work-in-progress of Rs.5472,56,81,731/- during the periods from 2009-10 till 2013-14 towards construction of 2X600MW Thermal Power Plant. It is, therefore, urged that the assessing authority having not taken into consideration such vital fact, heavy demand raised by way of reassessment after audit assessment order under Section 9C being confirmed by the Additional Commissioner of Sales Tax (Appeals), Central Zone, Cuttack, now pending before the Odisha Sales Tax Tribunal in Second Appeal No.54(ET) of 2021, is tainted with arbitrariness and irrationality. 4.3. It is further submitted that the Assessing Authority could have been more circumspect while undertaking reassessment proceeding under Section 10 of the OET Act. On earlier occasion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company before the Assessing Authority. He further submitted that even if this Court holds the assessment pertaining to 2013-14 has been hit by limitation period stipulated under Section 10 of the OET Act, it would have no impact on the determination of liability inasmuch as no part of turnover pertaining to 2013-14 has been taken into consideration in the impugned reassessment. 6. With regard to initiation of proceeding by issue of notice for reassessment for the tax periods from 01.04.2013 to 31.03.2014 it is pertinent to take note of sub-section (1) of Section 10 of the OET Act which reads as follows: 10. Reassessment in certain cases.- (1) Where for any reason all or any of the Scheduled goods brought by a dealer has escaped assessment of tax, or where value of all or any of the scheduled goods has been under-assessed, or any deduction has been allowed wrongly, the assessing authority, on the basis of information in his possession, may, within a period of seven years from the end of the year to which the tax period relates, serve a notice on the dealer in such form and in such manner as may be prescribed and after making such enquiry as he considers necessary and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ganisation) furnished a copy of instruction dated 22.07.2022 under the signature of the Assessing Authority wherein the following has been stated: As regard point No.-2, I am to say that the contention now taken never raised before me at the time of adjudicating the case. In every occasion the person appearing on behalf of the dealer-company has challenged the jurisdiction of the assessing authority and objected that there is no material with the revenue which proves that there is no escapement of turnover. *** But as per the audited balance sheet in column No.-11 it has been categorically mentioned addition of plant and machinery was of Rs.6019,11,90,908/-. In bifurcation figures submitted by the CA in Point No.-11, it has been clearly mention the purchase of plant and machinery from local and inter-State source but the dealer-company never explained/produced any books of accounts in support of such claim. 7.2. It has been brought to the notice of this Court by the senior counsel for the petitioner-company that such a statement by the Assessing Authority is fallacious in view of written submission dated 03.03.2022 (Annexure-12 of the writ petition) furnished to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessing authority that such goods have already been subjected to entry tax or that the entry tax has been paid by any other person or dealer under this Act. Explanation .- Where the goods are taken delivery of on their entry into a local area or brought into the local area by a person other than a dealer, the dealer who takes delivery of the goods from such person or makes carriage of the goods shall be deemed to have brought or caused to have brought the goods into the local area. 7.6. It transpires from the aforesaid provision that onus lies on the assessee to satisfy the Assessing Authority by adducing evidence to the effect that subject-goods have already been subjected to entry tax or that the entry tax has been paid by any other person or dealer under the OET Act. 7.7. In the above premises, this Court is of the considered opinion that as the explanation of the petitioner-company has not been given due consideration by the Assessing Authority. As has already been held that the assessment in respect of the tax periods from 01.04.2013 to 31.03.2014 out of the impugned tax periods from 01.04.2013 to 30.09.2015 undertaken for assessment under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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