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Judgment
B.N. Mahapatra, J.—This Writ Petition has been filed for quashing of a part of the assessment order which relates to disallowance of deduction claimed by the Petitioner on the basis of declaration Form No. 1-D(96) issued by Opposite Party No. 5-Rishab Electricals Pvt. Ltd.(for short, ''REPL'') against the sale made to it on the ground that such action of the assessing officer is contrary to law.
The facts & circumstances giving rise to this case are that the Petitioner-company is a Government of India Company registered under the Companies Act, 1956 & under the Orissa Sales Tax Act, 1947 (hereinafter referred to as "the OST Act") having its refinery & alumina plant at Angul. The Petitioner-company is engaged in the business of manufacture & sale of aluminum ingots, wire rods, billets, etc. During the year under consideration, i.e., 2002-03, the Petitioner sold wire rods worth Rs. 31,58,39028.51 p. to M/s. REPL against the statutory declaration Form No. 1 -D(96) issued by it claiming sales tax exemption on purchase of raw materials under IPR 1996. At the time of assessment, the Petitioner produced the statutory declaration forms in support of its claim of deduction for sale of wire rods to REPL. But, the assessing officer did not accept the said declaration forms & added Rs. 31,58,39028.51 p. to the taxable turnover of the Petitioner & levied tax & surqharge on the said amount which resulted in an extra tax demand of Rs. 1,38,96,917.The assessing officer rejected the declaration forms on the ground that REPL was not entitled to sales tax exemption forthe year 2002-03 under the IPR-1996, as it has exceeded the maximum limit of tax exemption prior to the said year. Hence the Writ Petition.
Mr B.K. Sharma, Learned Counsel for the Petitioner, submits that REPL had been given a certificate of eligibility for sales tax concession op purchase of raw materials, machineries, spare parts, packing materials & finished products under the IPR-1996 vide letter dated 24.9.1998 (Annexure-2) of the Director of Industries, Orissa, Cuttack-Opposite Party No. 2 for eight years as a priority industry. The said certificate of eligibility was amended vide Order Dated 30.11.1999 & REPL was declared to avail exemption of sales tax for two additional years including the eight years & that there would be no maximum limit of such exemption during the period of eligibility. Moreover, the Sales Tax Officer, Balasore Circle, Balasore vide its letter No. 532/CT dated 13.11.2003 & Sales Tax Officer Ward-B, Bhubaneswar-2 has clarified that there is no maximum limit of exemption for priority industries & period of exemption shall be extended by two additional years. The said clarification was furnished by the Sales Tax Officer based on the notification No. 932/2002/P dated 12.11.2002 issued by the Finance Department, Government of Orissa. The Petitioner on the basis of such eligibility certificate issued in favour of Opposite Party No. 5 by the competent authority, effected sale to REPL against statutory declaration forms. The Petitioner received a letter dated 29.8.2002 from the Sales Tax Officer (Assessment Unit), Khurda indicating therein that Opposite Party No. 5 had exceeded the limit of tax exemption during the year 1998-99 &, therefore, they were not entitled to purchase raw materials free of tax. In the said letter, the Petitioner was also asked to collect sales tax on the sales effected to REPL & to deposit the same with the sales tax authority. Soon after receipt of the said letter, the Petitioner stopped supply of raw materials to REPL. The Petitioner vide its letter dated 18.9.2002 intimated the Sales Tax Officer, Khurda that on the basis of Form No. 1 -D(96) issued by the competent authority sales were effected to REPL &, therefore, the Petitioner should not be held responsible for any tax against such sales. Further, Mr. Sharma emphatically argues that it is neither possible nor practicable for the selling dealer to monitor/ verify whether REPL had exceeded the ceiling limit of tax exemption. Opposite Party No. 5 might have purchased raw materials, machineries, spare parts etc. from different other sources availing sales tax exemption on such purchase & also on sale of finished products for which it is impossible for the Petitioner to verify whether the limit prescribed for availing tax concession had exceeded or not by a particular date. The only duty of the Petitioner is to verify whether the goods purchased have been specified in the registration certificate of the buying dealer & declaration form No. 1 -D(96) issued by the competent authority is furnished for availing exemption. If these two conditions are satisfied, the Petitioner has no option but to sell the materials to REPL. Therefore, the order of assessment passed by the assessing officer imposing tax on sale of wire rods to REPL against Form No. 1-D(96) is not legally sustainable.
Mr. S.C. Lal, Learned Senior Counsel appearing for Opposite Party No. 5 submits that during the period under consideration, REPL is entitled to avail sales tax exemption on purchase of raw materials, etc. in terms of Entry 43A of the Tax free List. It had not exceeded the maximum limit of exemption prior to the year 2002-2003 as alleged by the assessing officer. It is further argued that this Court in the case of O.P. No. 5-Rishabh Electricals Pvt. Ltd. [W.P.(C) No. 2976 of 2003] disposed of on 21.12.2007 & Hi-Tek Powercon Pvt. Ltd. Vs. The Asst. Commissioner of Commissioner Taxes, (TRS) and Others, held that these industries are priority industries & eligible to sales tax concession on purchase of raw materials, machineries, packing materials, spare parts etc. & on sale of finished products.
Mr. Kar, Learned Counsel for Revenue strongly opposing the submission made by Mr Sharma & Mr.S.C.Lal, submits that the assessing officer has rightly levied tax on the sale of wire rods to REPL whose eligibility to avail sales tax concession on purchase of raw materials etc. & sale of finished products had exceeded ceiling limit of tax exemption during the year 1998-99 &, therefore, the purchasing dealer-REPL is not entitled to purchase raw materials free of tax during the year 2002-03, which is under consideration. The letter No. 30243/CT dated 24.12.2002 & letter No. 532/CT dated 13.01.2003 relied upon by the Petitioner, as averred in paragraph 6 of the writ petition, were not issued in favour of the Petitioner but relate to some other industries as would be evident from Annexure-3 series at pages 25 & 26 of the Writ Petition.
In Rishabh Electricals Put. Ltd. [W.P.(C) No. 2976 of 2003] disposed of on 21.12.2007 & Hi-Tek Powercon Pvt. Ltd. Vs. The Asst. Commissioner of Commissioner Taxes, (TRS) and Others, , the issue before this Court was as to whether the Petitioner- industry was to be treated as priority industry under Industrial Policy Resolution, 1996 so as to be eligible to avail the incentive of exemption of sales tax. But the question as to whether the Petitioner-industry had exceeded the original tax exemption limit prior to year 2002-03 & thereafter automatically ceased to avail any sales tax exemption under IPR-96 was not an issue before this Court. Mr. Kar expressed his doubt regarding the correctness of the tax exemption certificate dated 24th September 1998 (Annexure-2) wherein it has been certified that the Petitioner-company is entitled to tax emption for eight years from the date of commercial production, i.e., from 12.06.1998 to 11.06.2006, & this aspect has not been examined at any point of time either by the statutory authority or this Court. According to Mr. Kar, REPL being situated in Begunia, Khurda it comes under the Zone-B & is entitled to sales tax concession for a period of six years initially & not for eight years as certified in the eligibility certificate dated 24.9.1998.The question of extending tax exemption for two additional years will arise only after completion of the original period of tax exemption, i.e., after six years from the date of commercial production. Therefore, extension of tax exemption period by two additional years in the original eligibility certificate dated 24 09.1998 was premature. Sinc,e in the present case, the Petitioner had exceeded the limit of tax exemption in the year 1998- 99, the Petitioner unit thereafter was not eligible to avail any sales tax concession under IPR 1996. It is also argued that NALCO has sold wire rods to M/s. Rishab Electricals & collected declaration in Form 1- D(96).This declaration provides that the industry has been granted eligibility certificate bearing No. 11124 dated 24.9.98 by Director of Industries. This declaration is intimately connected with the eligibility certificate issued by the Director of Industry. The Director of Industries vide para-7 of the eligibility certificate has certified that it is eligible for exemption of sales tax (on purchase & sale) amounting to Rs. 198.17 lakhs. Petitioner-Company has not asked the purchasing dealer, M/s REPL to produce proof that it had not exceeded the limit of sales tax exemption. The exemption on purchases was conditional to the limit prescribed in the eligibility certificate. Further, wire rod was subject to tax at the first point of sale. M/s. NAlCO is the first seller & therefore the liability to collect tax devolves upon NALCO. 1 he declaration demands the selling dealer to examine the eligibility certificate with reference to all its conditions & should be satisfied on the genuineness of declaration form No. 1-D(96). Relying on the Judgment of this Court in Nawranglal Agarwalla v. State of Orissa (1965) 16 STC 271, he contended that mere production of a declaration though a strong presumptive evidence in support of the claim for deduction will not be conclusive & it will be open to the department to rebut the presumption, which has been rightly done in the Petitioner''s case. Mr Kar also relied upon the Judgment of this Court in Ramprasad Tormal v. State of Orissa (1970) 25 STC 38, in support of his contention that if the question arises regarding genuineness of the declaration, it is for the assessee to establish before assessing officer that the declaration on which he relies is a genuine declaration. It is further argued that since alternative remedy by way of appeal is available to the Petitioner, the Petitioner should not have invoked writ jurisdiction of this Court under Articles 226 & 227 of the Constitution.
Admittedly, in this case, the Petitioner is an industry under IPR 1996. This Court in its Judgment dated 21.12.2007 in Rishabh Electricals Pvt. Ltd. (supra) held that all priority industries whether small, medium or large would fall within the proviso to Entry 43A(1)(b) of the Tax Free list & entitled to avail sales tax exemption in accordance with IPR 1996. Under Entry 43A, the exemption of sales tax on purchase of raw materials, machineries, spare parts thereof, packing materials & on sale of finished products shall be allowed from the date of commercial production to be certified by the Director of Industries, Orissa for a period of 7 years, 6 years & 5 years if the industrial units are located in Zones ''A'', ''B'' & ''C'' respectively. In SI. No. 43A under Item No. (ii) of the 3rd proviso in Column (3), it was originally provided as follows:
....for priority industries the period of exemption shall be extended by two additional years & the maximum limitation for exemption of sales tax shall be 200% of fixed capital investment & in case of electric/telecommunication (hardware & software units) the maximum limit of exemption of sales tax shall be 250% of the fixed capital investment.
Subsequently, vide Finance Department Notification No. 52281-CTA-2/2002F (SRO 932/2002) dated 12.11.2002, this provision has been substituted, the relevant partition of which is reproduced herein below:
(ii) For priority industries, the period of exemption shall be extended by 2 additional years & there shall be no maximum limit on such exemption during the eligibility period.
According to Mr. Kar, Learned Counsel for the Revenue, M/s REPL started its commercial production from 12.06.1998 & since the unit exceeded the maximum limit of exemption of sales tax, i.e., by 200% of the fixed capital investment during the year 1998-99., the unit thereafter was not eligible to avail any tax exemption. If the contention of Mr. Kar that M/ s REPL had exceeded the maximum limit of sales tax exemption during the year 1998-99 or any period prior to 2002-03 is found to be correct, then the question does arise as to whether the additional benefit granted under Finance Department Notification dated 12.11.2002 would be available to M/s REPL (O.P. No. 5). If that be so, this aspect has to be examined in the light of other objections raised by Mr. Kar. The Counsel for the parties have not disputed that in the earlier Judgment of this Court In Rishabh Electricals'' case (supra) these aspects have not been examined.
Thus, the main dispute involved in this case is whether prior to year 2002-03, the purchasing dealer M/s REPL had exceeded the maximum exemption limit thereby disentitling it to avail sales tax concession for the year 2002-03 in terms of notification dated 12.11.2002. Another important aspect of the case is as to under what circumstances the eligibility certificate had been granted for a period of eight years at initial stage in contravention of the statutory provisions. More so, in case M/s REPL had availed the benefit of eligibility certificate exhausting the maximum limit during a particular period as to whether further benefit could have been taken by it making misrepresentation. It is settled legal proposition that misrepresentation/ fraud vitiates every action/order whether the assessment orders made in favour of M/s REPL which might have attained finality could have any sanctity. All these questions are admittedly questions of fact. Such factually disputed questions cannot be adjudicated by this Court in exercise of writ jurisdiction.
In that view of the matter, we are riot inclined to entertain the Writ Petition & thus accordingly dismissed. However, it is open to the Petitioner to prefer statutory appeal against the impugned assessment order along with a petition for condonation of delay. If such an appeal is filed along with a petition for condonation of delay within a period of four weeks from today, the Appellate authority shall consider the question of delay taking into consideration that the Writ Petition was pending in this Court since 10.12.2003. Since opportunity is given to the Petitioner to file first appeal against the assessment order, the first Appellate authority shall consider all factual & legal issues raised by Mr. Sharma, Learned Counsel for the Petitioner, Mr. Kar, Learned Counsel for the Revenue & Mr Lai, Learned senior Counsel for Opposite Party No. 5 giving opportunities to the parties keeping in view the provisions of Section 23(5) of the OST Act read with Rule 51 of the OST Rules, 1947.
The interim Order Dated 18.3.2004 shall continue to operate for a further period of 4 weeks from today.
B.S. Chauhan, C.J.
I agree.