Advocates:
['ASCC T', 'M/S S K PATTNAIK', 'U C MOHANTY', 'D PATTNAIK', 'P K PATTANAIK']

03. 30.01.2019

Heard Addl. Standing Counsel for the petitioner-

Department.

2.

By

way

of

this

reference,

the

petitioner-

Department has challenged the order passed by the Full

Bench,

Orissa

Sales

Tax

Tribunal,

Cuttack,

dated

04.02.2004, in S.A.No.6158-6159 of 1994-95, whereby the

learned Tribunal has confirmed the order passed by the

learned Asst. Commissioner of Sales Tax, Sambalpur

Range, Sambalpur, passed in Appeal Nos.AA.217 & 2018

(S.A.III)/90-91.

3.

Being aggrieved by the impugned order of the

Orissa Sales Tax Tribunal, the petitioner-Department has

approached this Court. This Court while adjudicating the

matter, admitted this Revision Petition on the question of

law as framed at Ground 8B9. In Paragraph-12 of the

Revision Petition, which reads as under:

<12.xxx xxx xxx

(B) Whether in the facts and circumstances of

the case, the agreements for sale of sal seeds

has been correctly interpreted and whether the

same spell out and establish a relationship

between the transaction of sale and movement of

goods from out of the state of Orissa?=

4.

We have gone through the orders of the first

appellate authority as well as the Tribunal. Relevant

portion of the order of the first appellate authority at page-

25 is quoted below:

<In the instant case the outside parties came

to Orissa, remain present at the time of

STREV No. 54 of 2004

-2-

weighment and took delivery of the goods on

payment of sale value. That does not mean that,

the transaction does not attract the provisions of

Section 3(a) of the C.S.T. Act. In Oil India Limited

vrs. Superintendent of Taxes, 35 S.T.C. 445 it

was held that, a sale which occasions movement

of goods from one state to another is a sale in the

course of inter-state trade, no matter in which

State the property in the goods passes. It is not

necessary that the sale must be received the

interstate movement in order that, the sale may

be deemed to have occasioned such movement

and it is also not necessary for a sale to be

deemed to have taken place in the course of

inter-state trade or commerce, that the covenant

regarding

inter-state

movement

must

be

specified in the contract itself. It would be

enough, if the movement was in pursuance of

and incidental to the contract for sale. In such

view of the matter the transaction of sale

effected by the appellant of Sal seed comes

under 3(a) of the C.S.T. Act and therefore no tax

under the O.S.T. Act is leviable. Levy of tax

under the O.S.T. Act is not justified.

The discrepancy in the stock of the

appellant is detected by the Assessing Officer

was just a clerical mistake, which subsequently

be reconciled. Such clerical mistake cannot be

held to be a suppression of sale and therefore no

adverse view could be taken. As regards levy of

tax on wanting declaration, this has not been

contested. Wanting declarations have also not

been

furnished

before

this

forum.

The

assessment on this account therefore stand.

In the result, both the appeals are

partly allowed and the assessment under the

O.S.T. Act is reduced by Rs.5,79,342.00 and

under the O.A.S.T. Act the assessment is

reduced by Rs.35,060.00. Excess amount paid

if any, may be refunded as per the provisions of

law. =

-3-

5.

Learned counsel for the petitioner-Department in

support of his contention has taken us to the definition of

the <Sale= at clause 2(g) of the Orissa Sales Tax Act, which

reads as under:

<2(g) <Sale= means with all its grammatical

variations and cognate expression, any transfer

of property in goods for cash or deferred

payment or other valuable consideration and

includes, 3

i.

transfer, otherwise than in pursuance of a

contract of property in any goods for cash,

deferred

payment

or

other

valuable

consideration ;

ii.

transfer of property in goods (whether as

goods or in some other f