STATE OF ORISSA Vs. JOHRIMAL GAJANAND
SUPREME COURT OF INDIA (FROM: ORISSA)
STATE OF ORISSA
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(1.)The Sales Tax tribunal, orissa (the tribunal) stated a case and referred the following question for the opinion of the High court :
"Whether on the facts and in the circumstances of the case, the Member Sales Tax tribunal is correct in holding that even sales in course of inter-State trade and commerce, can be sale inside the State if the goods are inside the State of orissa, and whether his interpretation of the definition of 'sale' as given in Section 2 (g) of the orissa Sales Tax Act, 1947 and the Explanation attached to the definition 'sale' is correct -
The High court answered the question in the affirmative and in favour of the assessee. These appeals by the State of orissa are against the judgment of the High court.
(2.)The respondent-assessee is a registered dealer under the orissa Sales Tax Act, 1947, (the Act). The assessee purchased certain goods from a registered dealer on the basis of declaration furnished by it for resale of the purchased goods in the State of orissa. The goods were however sold in the course of inter-State trade. The Sales Tax Officer came to the conclusion that the declaration furnished by the assessee was violated and, as such, it became liable under the proviso to Section 5 (2 (A) (a) (ii) of the Act. Against the assessment made, the respondent preferred appeals under the Act before the Assistant Commissioner of Sales Tax which were dismissed. The assessee thereafter preferred appeals before the Sales Tax tribunal, orissa. The tribunal by its order dated 2/3/1973 annulled the assessment and directed the refund of tax and penalty, if paid. The tribunal at the instance of the appellant referred the above-quoted question for the opinion of the High court.
(3.)Section 5 (2 (A) (a) of the Act, to the extent it is relevant reads as under:
"In this Act the expression 'taxable turnover' means that part of a dealer's gross turnover during any period which remains after deducting therefrom:
(A) his turnover during that period on
(I) the sale of any goods notified from time to time as tax free under Section 6 and of the packing materials, if any in respect of such goods;
(Ii) sales to a registered dealer of goods specified in the purchasing dealer's certificate of registration as being intended for resale by him in orissa and on sales to a registered dealer of containers and other materials for the packing of such goods:
Provided that when such goods are used by the registered dealer for purposes other than those specified in his certificate of registration, the price of goods so utilised shall be included in his taxable turnover. "
'Sale' is defined in Section 2 (g) of the Act to mean as under :
".. With all its grammarical variations and cognate expressions, any transfer of property in goods for cash or deferred payment or other valuable consideration, including a transfer of property in goods involved in the execution of contract but does not include a mortgage, hypothecation, charge or pledge and words 'buy' and 'purchase' shall be construed accordingly;
Explanation. (a) A sale or purchase of goods shall be deemed to take place inside the State if the goods are within the State
(I) in the case of specific or ascertained goods at the time the contract of sale is made, and
(Ii) * * *
(B) * * *"
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