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2019 (3) TMI 95 - AAAR - VAT and Sales TaxReopening of assessment - Reassessment of tax liability - disallowance of branch transfer claim - Rule 12(4) of the Central Sales Tax (Orissa) Rules, 1957 - suppression of facts - consignment sales - it was alleged that appellant had sold goods of the value of ₹ 1,25,41,276/- to its consignment agent in the guise of stock transfer against pre-existing contract - Form - F declarations - reversal of ITC. Held that - From the TECR received from the Vigilance Wing Sambalpur it becomes apparent that the appellant had suppressed material facts and projected inter-State sales as stock transfers to evade tax. The Assessing Authority has, after verification of documents, independently drawn the conclusion that the appellant has suppressed material facts and the Tribunal has concurred with the same. I have no reason to defer from the view taken by the Assessing Authority and the Tribunal because it is based on proper analysis of the documents and other evidence. Pertinently the most vital documents i.e. the Sale Order Acceptances were not produced by the appellant before the audit team at the time of tax audit. They were not produced at the time of regular assessment for verification. This is, therefore, a case of suppression of material facts. There is undoubtedly misrepresentation of relevant facts. Reopening of the assessment therefore cannot be faulted. Moreover, Rule 12(4) of the Rules also permits the Assessing Authority to reopen the assessment in such circumstances. It is not possible in this case to say that the Assessing Authority i.e. the DCST has not conducted any enquiry. Undoubtedly, the Assessing Authority has to conduct an enquiry - It must be remembered, however, that no particular form of enquiry is prescribed. What should be the nature of enquiry is for the Assessing Authority to decide. After enquiry, he may pass an order on such declaration before the assessment or along with the assessment. Thus it can be concluded that, the Assessing Authority has conducted an enquiry and recorded in the reassessment order that Form-F declarations deserve to be rejected. The Assessing Authority has followed the mandate of law. Admittedly, during the hearing of Appeal No. FA 2 (C) of 2011-12, the appellant did not draw the Tribunal s attention to the impugned order. Had the impugned order been shown to the Tribunal, the Tribunal might have followed it. Unfortunately, even the Revenue did not draw the attention of the Tribunal to the impugned order. Conduct of both sides needs to be deprecated. The appellant has not drawn the attention of the Tribunal to the impugned order obviously because it was against it. More callous is the approach of the Revenue in not pointing out this order to the Tribunal when it was in its favour. Rreversal of ITC - Held that - There is substance in the submission of Mr. Pani, learned Counsel for the State of Odisha that it is raised for the first time in this appeal and therefore it is not possible at this stage to ascertain how far the said claim is true. No evidence is produced in this behalf. Since the stock transfer claim of the appellant is found to be not tenable and the transactions in question are found to be inter-State sales, the State of Maharashtra will have to be directed to pay to the State of Odisha an amount of ₹ 5,01,600/- collected from the appellant towards VAT - Since the appellant has deposited ₹ 3,76,238/- with the State of Odisha pursuant to this Authority s interim order dated 24.09.2015 taking that amount also into account, the appellant will have to be directed to pay a sum of ₹ 6,27,115/- to the State of Odisha. The State of Maharashtra is directed to return an amount of ₹ 5,01,600/- collected by it towards VAT from the appellant to the State of Odisha - The appellant is directed to pay an amount of ₹ 6,27,115/- to the State of Odisha in terms of the assessment order dated 24.01.2011 passed by the Deputy Commissioner of Sales Tax, Sambalpur Range, Sambalpur - appeal dismissed.
Issues Involved:
1. Legality of the reassessment order. 2. Validity of the branch transfer claim. 3. Imposition of penalty. 4. Reversal of Input Tax Credit (ITC). 5. Applicability of res judicata in tax matters. 6. Refund of VAT collected by the State of Maharashtra. Detailed Analysis: 1. Legality of the Reassessment Order: The appellant challenged the reassessment order dated 24.01.2011 passed by the Deputy Commissioner of Sales Tax (DCST), which disallowed the branch transfer claim and reassessed the tax liability for the period 01.04.2007 to 30.09.2007. The reassessment was based on the Tax Evasion Case Report (TECR) from the Vigilance Wing, Sambalpur, which indicated that the appellant had made consignment sales worth ?1,25,41,276.00 to its consignment agent, M/s Gauri Sales, Nagpur, under a pre-existing contract, projecting these sales as branch transfers to evade tax. The DCST, after verifying the appellant's books of account and other documents, concluded that the transactions were inter-State sales and not branch transfers, thus raising a tax demand of ?15,04,953.00. 2. Validity of the Branch Transfer Claim: The appellant contended that the reassessment based on the TECR was unjustified and relied on various legal precedents to support its claim of genuine stock transfers. However, the DCST and the Tribunal found that the appellant had a pre-existing contract with the buyer, and the goods were directly moved from the factory to the ultimate buyer without being unloaded or stored by the consignment agent. The Sale Order Acceptance forms and other documents indicated a pre-negotiated price and specific buyers, establishing the transactions as inter-State sales. The Tribunal upheld the DCST's order, confirming the reassessment and rejecting the stock transfer claim. 3. Imposition of Penalty: The DCST imposed a penalty of ?10,03,302/- under Rule 12(4)(c) of the Central Sales Tax (Orissa) Rules, 1957, for the alleged under-assessment of turnover. The appellant argued that the penalty was unwarranted as there was no deliberate or dishonest conduct. However, the Tribunal found that the appellant had suppressed material facts and misrepresented the nature of the transactions, justifying the imposition of the penalty. 4. Reversal of Input Tax Credit (ITC): The appellant claimed to have reversed ITC amounting to ?2,51,724.00, which, along with the VAT paid by the consignment agent, aggregated to ?7,53,374.00. The appellant argued that this amount exceeded the tax liability under the Central Sales Tax Act, 1956, and thus there was no motive for tax evasion. However, the Tribunal noted that this claim was raised for the first time in the appeal and lacked supporting evidence. Consequently, the Tribunal did not consider the ITC reversal in its decision. 5. Applicability of Res Judicata in Tax Matters: The appellant cited a Tribunal order dated 15.03.2017 for a subsequent period (01.10.2007 to 30.09.2009), where the Tribunal had upheld the stock transfer claim in a similar fact situation. However, the Tribunal clarified that principles of res judicata do not apply to tax matters, and each assessment year is treated as a separate unit. The Tribunal emphasized that the appellant had not drawn attention to the impugned order during the earlier proceedings, and thus the previous order did not influence the current decision. 6. Refund of VAT Collected by the State of Maharashtra: The Tribunal directed the State of Maharashtra to return the VAT amount of ?5,01,600/- collected from the appellant to the State of Odisha. The appellant was also directed to pay ?6,27,115/- to the State of Odisha, taking into account the amount already deposited pursuant to the interim order. Conclusion: The appeal was dismissed with the following directions: a) The State of Maharashtra is directed to return ?5,01,600/- collected as VAT from the appellant to the State of Odisha. b) The appellant is directed to pay ?6,27,115/- to the State of Odisha as per the reassessment order dated 24.01.2011.
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