R.K. Patra, J.
1. On the basis of reference made by the Orissa Sales Tax Tribunal (in brief 'Tribunal'), the matter was registered as S.J.C. No. 61 of 1995. Following the amendment to Section 24 of the Orissa Sales Tax Act, 1947 (hereinafter referred to as 'the Act'), the said reference has been converted to tax revision and that is how it has come before us for disposal.
2. The Tribunal referred the following question for opinion of this Court :
'Whether, on the facts and in the circumstances of the case, the assessee is entitled to any relief of adjustment with respect of the taxes already paid by him on the transactions of purchase in a proceeding under, Section 12(5) of the Orissa Sales Tax Act, if the dealer was found to be liable under the Act prior to grant of registration certificate ?'
3. Upon hearing the counsel for parties and on perusal of the relevant orders passed by the authorities under the Act, the question really arises for consideration is, whether the assessments are liable to be varied in view of provision contained in the proviso to Section 8 of the Act which states that the same goods shall not be taxed at more than one point in the same series of sales or purchases by successive dealers.
4. In order to decide the aforesaid question framed by us, brief narration of facts is necessary :
The petitioner carries on business in India-made foreign liquor and beer. For the period from April 5, 1986 to August 13, 1986 (during this period the petitioner was not a registered dealer) assessment was made under Section 12(5) of the Act raising the demand of Rs. 29,600. For the period from August 14, 1986 to September 30, 1986 assessment was made under Section 12(4) of the Act raising the demand to Rs. 336. Being aggrieved by the order of assessments, the petitioner filed two first appeals which were disposed of by a common order dated January 12, 1989 by the Assistant Commissioner of Sales Tax who reduced the assessment. Against this order, he filed second appeal Nos. 1813 and 1814 of 1989-90 before the Tribunal which were dismissed by order dated June 17, 1993.
5. Shri Mohanty, learned counsel for the petitioner, submitted that the Indian-made foreign liquor and beer are subject to levy of sales tax at the last point of sale and the tax having already been paid, he cannot be further held liable as it would amount to double taxation which is prohibited under the proviso to Section 8 of the Act. He submitted that during the relevant period, petitioner purchased the goods from the registered dealers inside the State on payment of sales tax and evidence in support of such payment of tax was produced before the Sales Tax Officer, the first appellate authority as well as before the second appellate authority, but they failed to take note of the consequence of such payment.
Learned Additional Standing Counsel appearing for the department submitted that in absence of any proof of payment of tax, the petitioner cannot escape the liability.
6. On our direction the relevant record before the Tribunal was produced by the Additional Standing Counsel. On perusal of it we found that there are documents in support of payment of tax at the last point of sale, In fact there was no dispute with regard to this factual aspect before the Tribunal. The assessing officer in his order also observed as follows :
'....He has produced his purchase account only in support of purchase voucher which has been verified by me....'
7. The scheme of the Act is to levy single point tax at the first point or last point of sales or purchases by successive dealers as notified by the State Government from time to time. It is not in dispute that the Indian-made foreign liquor and beer are subject to levy of tax at the last point of sale. Proviso to Section 8 lays down that the same goods shall not be taxed at more than one point in the same series of sales or purchases by successive dealers. In view of the fact that the sale of Indian-made foreign liquor and beer had already suffered tax, the petitioner cannot be further fastened with the liability to pay tax as it would amount to double taxation prohibited under Section 8 of the Act.
8. For the reasons aforesaid, we are of the opinion that the petitioner is entitled to the necessary relief. We accordingly, answer the question in favour of the petitioner.
The revision is allowed.
L. Mohapatra, J.
9. I agree.