Decided on May 07,1973



R.N.MISRA, J. - (1.) IN S.J.C. Nos. 118 and 119 of 1971 and 179 to 182 of 1971, only one question has been referred for determination of this court, namely : "Whether, on the facts and in the circumstances of case, it is correct for the Tribunal to hold that the assessee does not become a 'dealer' under the Central Sales Tax Act ?" In the remaining cases, over and above the aforesaid question, one more question has been referred, namely : "Whether, in the facts and circumstances of the case, the Tribunal is right in holding that the assessee-opponent is not a 'dealer' in the face of the 'D' form declaration obtained from the railway to claim concessional rate of tax in inter-State transactions."
(2.) THE relevant facts for answering the questions referred to us, which we have collected from the statement of facts in several of these cases and a judgment delivered by this court in a connected writ petition, are these : For the purposes of maintaining the railway track, Indian Railways required sleepers. Forests within the State of Orissa are exploited either by contractors or the Government owned corporation (Orissa Forest Corporation). The railway is interested in buying good sleepers in a convenient way. The forest department of the State of Orissa is interested in seeing that its products are marketed. The Government of Orissa and the railway administration entered into an arrangement by which Divisional Forest Officers in the employment of the State of Orissa within their respective jurisdictions were allowed to obtain sleepers from contractors within their respective areas, pay for them on behalf of the railways from out of the advances received and supply the same in turn to the railway administration. The Divisional Forest Officers of Karanjia, Keonjhar, and the District Forest Officer of Balliguda were held to be dealers carrying on business of buying and selling sleepers. Assessments were made under the Orissa Sales Tax Act (hereinafter called the Orissa Act) in respect of the intra-State sales between the contractors on the one side and the respective forest officers on the other, treating the contractors as dealers. Assessments were also made under the Central Sales Tax Act (hereinafter called the Central Act) in respect of the sales made by the forest officers to the railway administration. We are told by counsel appearing in these cases that the assessment under the Orissa Act is not in dispute. In fact, only recently in a case where the Orissa Forest Corporation was the assessee, we accepted the assessments to be valid under the Orissa Act. In respect of the Central sales tax assessments, the respective forest officers disputed their liability contending, inter alia, that they were not dealers. The first appellate authority in the case of the Divisional Forest Officer of Karanjia had set aside the assessments by finding that he was not a dealer. The State appealed against the said first appellate decision. The first appellate authority in the case of the Divisional Forest Officer of Keonjhar and District Forest Officer of Balliguda upheld the assessments. The respective assessees appealed to the Tribunal.
(3.) MR . T. V. Rao, Member of the Tribunal, by his judgment dated 5th January, 1968, set aside the order of the first appellate authority in the case of the Divisional Forest Officer of Karanjia and restored the assessments. At the instance of this assessee references had been made to this court in S.J.C. Nos. 39 and 40 of 1968. The assessee had also filed a writ petition being O.J.C. No. 367 of 1970. By judgment dated 17th April, 1970, a Bench of this Court quashed the appellate decision of the Tribunal as a result whereof the references became infructuous and the second appeals came to be reheard. All these appeals thereafter were disposed of by the Member, Sales Tax Tribunal, who took the view that the respective forest officers were not dealers under the Act. Thereupon, at the instance of the State of Orissa, these references have been made.;

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